1.pdf - US Case Law

AMERICAN EXILERapid Deportations That Bypass the Courtroom

December 2014

Cited in USA v. Peralta-Sanchez

No. 14-50393 archived on February 2, 2017

Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, of 203USA v. Rufino Peralta-Sanchez Doc. 9028756392 Att. 1

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https://docs.justia.com/cases/federal/appellate-courts/ca9/14-50393/9128756393/1.html

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AMERICAN EXILERapid Deportations That Bypass the Courtroom

American Civil Liberties Union

125 Broad Street

New York, NY 10004

www.aclu.org

© 2014 ACLU Foundation

Cover and interior images: Tijuana, Mexico, March 2014. Men standing on the beach look across the border to

California as U.S. Border Patrol officers arrest two migrants.

Back cover image: The U.S. fence separating California and Mexico, expanded and fortified in 2011 and

jutting 30 feet into the Pacific Ocean.

Cover, interior, and back photographs: Sam Frost



Case: 14-50393, 02/07/2017, ID: 10304776, DktEntry: 43-2, of 203

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Key Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. Summary Deportation Procedures: An Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Expedited Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. Reinstatement of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Administrative Voluntary Departure/Voluntary Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

D. Administrative Removal Under INA § 283b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

E. Stipulated Orders of Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

II. Who Is Getting Deported Without a Hearing?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

A. Asylum Seekers Returned to Danger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

1. Expedited Removal and the Impediments for Asylum Seekers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

2. Language and Information Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

3. Failure to Refer Asylum Seekers to an Asylum Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

4. Asylum Seekers with Prior Removal Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

B. People Lawfully in the United States Who Are Deported Without a Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

1. U.S. Citizens Deported Through Summary Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

a. U.S. Citizens with Mental Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

b. U.S. Residents with Valid Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

2. Expedited Removal of Tourists and Business Visitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

C. Longtime Residents Removed Without a Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

1. Deportations at the Border . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

2. Apprehended and Deported in the Interior of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

a. Voluntary Return. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

b. Administrative Removal Under 238b. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

D. Children Arriving Alone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

1. Legal Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

2. Accessing the Protections of the System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

3. Mexican Children and the TVPRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

4. The TVPRA in Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

III. After Deportation: The Aftermath of an Unfair Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

A. Erroneous Deportations and the Lack of Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

B. Reinstatement of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

C. Prosecution for Returning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

D. American Families Living in the Shadows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

IV. International Law and Restrictions on Summary Removals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

A. Access to Justice and the Right to a Fair Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

B. The Right to Apply for Asylum and Right to Protection from Persecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

C. Special Protections for Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

D. Limitations on Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

E. The Right to Family Unity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Glossary of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

CONTENTS

AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom




did not have a hearing, never saw an immigration judge, and were deported through cursory administrative processes where the same presiding immigration officer acted as the prosecutor, judge, and jailor. Some of those expelled without a hearing had lived in the United States for many years, have U.S. citizen children, and were never afforded the opportunity to say goodbye to relatives or call an attorney before being wrenched from their lives rooted in American communities. Some of those deported were fleeing violence, persecution, or torture and were turned back to danger. Others had lawful status in the United States, including U.S. citizenship, but were erroneously deported.

Deportation has incalculable consequences for the individual removed4 and the family left behind in the United States, so the decision to deport should be arrived at with care by a judge trained in immigration law and considering the facts and circumstances of each case. Instead, in the current system, U.S. law enforcement officers make complicated decisions about a person’s rights, with catastrophic results when they are wrong. In many cases, individuals have been coerced to sign forms they do not understand and were threatened or lied to about their rights. In this coercive environment, it is inevitable that individuals with the right to be in the United States may abandon those rights. They were told to sign a form, and then they were gone.

Summary removal procedures5 are a short-circuited path to deportation. At the U.S. border, a Mexican national can be deported almost instantly. The speed of a summary removal may be attractive, but it has also resulted in devastating and predictable errors, leading to the banishment and, in some cases, death of people who had a right to be in the United States. And while these orders, including mistaken ones and their severe penalties, are quickly delivered, they cannot easily be undone.

EXECUTIVE SUMMARY

Hilda, a 35-year-old woman from Honduras, arrived in Texas in 2013, fleeing gang threats and domestic violence

that had just resulted in the miscarriage of her twin babies.

She was still bleeding when she was arrested by a Border

Patrol officer with her two young surviving children. “I was

caught crossing the river,” recalls Hilda:

It was 8 p.m. at night. They took me and my kids

to a cell … They started to ask us to sign a lot

of papers. The problem was I didn’t understand

anything he was asking me. Since he saw that I

didn’t understand, [the officer] would just write

and write and just tell me, “Sign.” … He would

just put [the form] in front of me and say, “Sign,

next one, sign.” . . . I was afraid [to ask for help].

Everyone there was afraid. [The officers] don’t let

you even talk to them. . . . The fear they instill in

you doesn’t let you ask for help.1

Hilda and her two-year-old and 12-year-old sons were

issued deportation orders by an immigration enforcement

agent. Hilda never saw the deportation order; she did not

know what language it was in.

In 2013, the United States conducted 438,421

deportations.2 In more than 363, 2793 of those

deportations—approximately 83 percent—the individuals

In FY 2013, 83 percent of deportation orders came from immigration officers, not judges.

Department of Homeland Security, Office of Immigration Services, Annual Report,

Immigration Enforcement Actions: 2013, September 2014, available at http://www.dhs.gov/

sites/default/files/publications/ois_enforcement_ar_2013.pdf. Note: Total may not equal

100% because of rounding.

FIGURE 1

FY 2013 Removal Figures by Deportation Process

Expedited Removal

All other (judicial orders

plus stipulated

orders and 238b)

Reinstatementof Removal

39%

44%

17%

2 AMERICAN CIVIL LIBERTIES UNION




United States, despite the notorious

complexity of immigration law.

Immigration courts frequently reject

the charges brought by the Department

of Homeland Security (DHS) or find

the non-citizen eligible for relief from

deportation.7 However, in summary

deportation procedures, there is no

neutral judge to evaluate the legitimacy

of the charges or a person’s eligibility

for relief or lawful status.

There are several types of summary

removal or return processes that

bypass the courtroom, although two

processes together give rise to the vast majority of these

removal orders. The first, “expedited removal,” accounts for

approximately 44 percent of all deportations. The process

permits DHS officers to order non-citizens deported, with

a ban on readmission ranging from five years to life, when

the officer determines that the individual does not have a

valid entry document.

The second, “reinstatement of removal,” issued to

individuals previously deported who reenter without

permission, accounts for the largest single number of

deportations (39 percent). Reinstatement orders are

used throughout the country and can occur especially

quickly at the border, offering virtually no chance to raise

or overturn errors in a prior deportation order. Other

summary procedures such as “stipulated orders removal”

and “administrative removal” also apply nationwide and

allow DHS to divert people away from immigration courts,

where constitutional and statutory rights established over a

century govern the proceedings.

These summary procedures invite, and guarantee, error.

And yet erroneous—even illegal—summary removal

orders are difficult to challenge because of the speed of the

process, the limited “evidence” required, and the absence

of a complete record of the proceeding. These procedures

might need more review, as they lack many courtroom

safeguards; instead, most summary procedures are

subject to strict jurisdictional limits that severely limit the

possibility of any judicial review.

WHAT ARE SUMMARY REMOVAL PROCEDURES? Before 1996, with minor exceptions, every person who received a formal deportation order (and all the conse-quences that accompany it) was given a full hearing before an independent judge. Individuals whom the government sought to deport could make claims about why they should be allowed to remain in the United States, retain a lawyer, present evidence, examine witnesses, and dispute the charges against them. And, if the immigration judge denied their claims—rightly or wrongly—the individual still had a chance to have that decision reviewed by an administrative appeals body and then by one or more federal courts.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)6 dramatically changed that system. In creating new and dramatically expanding pre-existing summary removal procedures, IIRIRA established an administrative system that replaced judges with immigration officers—the same officers who arrest, detain, charge, and deport. IIRIRA allowed these officers to issue deportation orders (called “removal orders”) without the kind of hearing that had always been afforded before. The removal orders issued in these summary removal procedures come with the same significant penalties as deportation orders issued by a judge after a full hearing, but the processes that lead to these orders could not be more different.

In a summary removal process, immigration officers and agents determine who can enter or remain in the

Undocumented Guatemalan immigrants are supervised by guards while on a deportation flight from Mesa, Arizona, to Guatemala City, Guatemala, on June 24, 2011.

Joe Raedle/Getty

3AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom




In practice, these statutory safeguards have proven illusory for many bona fide asylum seekers, as the U.S. government recognized in a study commissioned by Congress and published in 2005.10 Almost a decade later, border officials still fail to adequately screen all asylum seekers for fear of return before ordering them deported—and the consequences are severe. Of the 89 individuals interviewed by the ACLU who received a summary removal order (expedited removal or reinstatement or, in the case of unaccompanied children, voluntary return) within the broad U.S. border zone,11 55 percent said they were never asked about their fear of persecution or that they were not asked anything in a language they understood. Only 28 percent said they were asked about their fear of returning to their country of origin by a border officer or agent; 40 percent of those asked about fear said they told the agent they were afraid of returning to their country but were nevertheless not referred to an asylum officer before being summarily deported.

The failure to follow these limited but essential safeguards has had catastrophic consequences. Braulia A.12 and Hermalinda L. were gang-raped and shot after being deported to Guatemala; Braulia’s son, who joined her in Guatemala after her deportation, was murdered by the same gang that raped and shot her. Nydia R., a transgender woman who actually had asylum status when she was (twice) deported without a hearing, was attacked by men who raped her and tried to cut out her breast implants; she was then kidnapped and sex-trafficked in Mexico. Laura S. told border officials that she was afraid of her abusive ex-partner; her pleas ignored, she was deported and was murdered by him within days of her removal to Mexico.

People Lawfully in the United States, Including U.S. CitizensIn summary removal proceedings, which can be a single quick encounter with an officer, immigration officers have erroneously identified individuals as having no legal status in the United States and have ordered them removed. Determining who is and is not “removable” is far from straight-forward and can involve complex legal determinations.13 But even individuals whose lawful status can be easily verified have been quickly removed without the chance to procure or consult with an attorney.

WHO IS GETTING DEPORTED WITHOUT A HEARING?Summary expulsion processes like expedited removal were

introduced in 1996 to combat what was perceived to be

an abuse of the asylum system by unauthorized migrants

coming to the United States for the first time.8 But today,

DHS officials use these procedures not only to rapidly

deport genuine asylum seekers arriving at our borders, but

also to remove longtime residents with U.S. citizen family;

children; individuals with valid work and tourist visas;

and others with significant ties or legal claims to be in the

United States. Some individuals quickly deported through

these processes are eligible for relief from deportation

and would win the right to remain in the United States

if brought before an immigration judge. But hasty,

non-judicial procedures deprive these individuals of that

opportunity and rely on DHS’s equivalent of police officers

to identify and adjudicate a person’s rights, sometimes in a

matter of minutes.

Asylum Seekers Individuals fleeing persecution in their home countries

have been deported through expedited removal when

they arrive at the U.S. border seeking protection. Congress

recognized this potential danger early on, and so it required

in IIRIRA that border officials processing an individual

for expedited removal refer individuals who claim fear to

an asylum officer with specialized training so that those

individuals are not rapidly deported without the chance to

seek protection.9

Asylum seekers, longtime residents, and others with rights to be in the United States can be deported without a hearing in a matter of minutes.





Longtime ResidentsAt the border and well into the interior, expedited removal

and many other summary deportation processes are used

against people whose lives and family are rooted in the

United States. Some individuals interviewed by the ACLU

had lived in the United States since childhood and left

only briefly (to see a dying relative, for example); upon

their return, they were deported, their time in and ties

to the United States effectively erased. Inocencia C., for

example, had lived in the United States for almost 15 years

and was the mother of three young U.S. citizen children

when she was deported through expedited removal after

returning home to California from Mexico. Braulia A. had

gone to Tijuana for the day and was issued an expedited

removal order when she tried to return to the United States,

separating her from her five children. Veronica V., a mother

of three U.S. citizen children, had been living in the United

States for almost 20 years when police stopped the car her

husband was driving. Taken into immigration detention,

Veronica was prevented from speaking with her attorney and coerced into accepting voluntary return. Although she would have been a strong candidate for discretionary relief, she is now in Mexico, separated from her young children.

Children Arriving AloneFor unaccompanied children arriving in the United States, the experience of being arrested, detained, and processed by a U.S. immigration agent can be particularly harrowing. Through the Trafficking Victims Protection Reauthorization Act (TVPRA), Congress attempted to ensure that children were given the opportunity to be heard by a judge. Under the TVPRA, Mexican unaccompanied children are to be screened for asylum or trafficking claims and cannot be turned back without seeing a judge unless they have the capacity to “choose” voluntary return. As applied by U.S. Customs and Border Protection (CBP), however, this has not offered

Maria, a U.S. citizen, was issued an expedited removal order by a Border Patrol officer who did not believe a U.S. citizen would speak only Spanish. She spent years in Mexico trying to return to the United States and did so successfully only after finding an attorney and many months of litigation. Francisco, who had lived most of his life in the United States and had a valid U visa,14 was erroneously arrested and deported by immigration officers. He was able to return to the United States and his family only after facing threats and harassment in Mexico, asking for help from U.S. border officers, and being arrested, detained, and flown to a detention facility far from his family.

The risk of an unfair removal order increases with the expansion of “border”15 enforcement. For many people, crossing the U.S. border is their daily commute to work, to school, or to see friends and family. Expedited removal, in practice, gives immigration officers virtually unreviewable power to determine that someone with a valid visitor or business visa is not complying with the terms of that visa. One company, Yolo Medical, cancelled its plans to expand its business in the United States and closed a distribution center in Washington State, laying off U.S. citizen employees, due to the expedited removal of one employee and the continuing difficulties employees faced with border officials at ports of entry.

Born in Russia, a nine-year-old cheers while sitting in the lap of his adoptive father during the children’s citizenship ceremony.

Chip Somodevilla/Getty





sanctuary in the United States but was repeatedly turned away at the border and accused by CBP officers of lying about the danger she faced.

The Obama administration has recognized the rising number of children fleeing violence in Central America as a humanitarian situation,18 one which has been well documented by the United Nations High Commissioner for Refugees (UNHCR) and others.19 Nonetheless, the U.S. government’s response to date has been to expand detention and accelerate the deportation process, as though the push factors of extreme violence and poverty that have driven these children to seek protection in the United States can be addressed through a more punitive response. Statutory changes suggested by Obama administration officials and some lawmakers would place Central American children in the same reflexive removal system that is applied to unaccompanied Mexican children; as a result, more children are likely to be removed to countries where they are in danger and left vulnerable to trafficking and other exploitation, in violation of U.S. obligations

under international and domestic law.

protection to Mexican children. An estimated 95 percent

of Mexican unaccompanied children are turned back

to Mexico without seeing a judge.16 Only one of the 11

Mexican children traveling alone who were interviewed by

the ACLU said he was asked about his fear of returning to

Mexico. Most did not recall being asked anything and said

they were yelled at and ordered to sign “some form.” All

were returned without a hearing. And yet, children seeking

protection will continue to come alone to escape violence

or reunite with family. Arturo, a 15-year-old abandoned

by his father and hoping to reunite with his mother, was

left in limbo in a Mexican shelter after his deportation:

“There is no reason for me to stay [in Mexico] if my dad

doesn’t want me here.”17 M.E., a young girl whose brother

was “disappeared” by a gang in Mexico and who was herself

threatened with kidnapping, made multiple efforts to seek

In 2014, thousands of young children fled violence in Central America and arrived alone in the United States.

An estimated 95 percent of Mexican unaccompanied children are turned back to Mexico without seeing a judge.

Reuters





another removal order or time in prison to be reunited with

their families. For these individuals, the penalties of DHS’s

strategy are felt by their entire families for years to come.

WHAT SHOULD BE DONE?Since 1997, summary removal procedures have been applied to millions of people, not only along the border, but also throughout the United States. The U.S. government has attempted to justify the expansion (and the corresponding retrenchment of rights) by stating that these processes are for people with no right to enter or remain in the United States.23 But as this ACLU report based on over 135 cases demonstrates, that simply is not true.

The use of summary deportation procedures has become the default. Yet their use is neither wise nor mandated under current law. DHS officers, who have great power to expel non-citizens with limited review, also have discretion to refer an individual for a hearing in front of a judge. Allowing someone to present his or her case does not impede DHS’s ability to enforce the law; rather, it allows DHS to enforce the law more fairly and accurately, ensuring that individuals with rights and claims to be in the United States can have those rights respected.

There are people living productive lives in the United States who are alive today because a Border Patrol agent followed the law, took the essential step to ensure someone understood their rights, and referred them to help. But there are also many cases where immigration officers pressure an individual to sign a deportation order that he or she does not understand, one that simultaneously obliterates critical rights and opportunities. Wrongful deportations are hard to set right. And for some, a later court challenge would be too late: people have been deported to their death after receiving a summary deportation order.

The U.S. government has the responsibility and the ability to prevent unlawful deportations. To that end, the United States must provide individuals with a fair and independent hearing, the chance to defend against deportation and seek review of an unjust order. These are basic safeguards in line with core American values of due process and justice and in keeping with our obligations to respect and promote

human rights.

AFTER DEPORTATION: THE CONSEQUENCES OF UNFAIR SUMMARY REMOVAL PROCESSESWhile summary removal processes are, by design, much

quicker and more truncated than a full hearing,20 the

rights adjudicated and penalties imposed through these

procedures are no less significant. In a matter of minutes,

a person whose entire life is in the United States can be

deported with a removal order that makes returning

lawfully (if even a possibility) extremely difficult or

that may permanently exclude him or her from future

immigration benefits.

Given the incredible danger in many places to which

non-citizens are deported, those summarily deported are

often unwilling to uproot (and endanger) their families

living in the United States. Therefore, some deported

parents return without applying for authorization. If they

are not apprehended, they and their families—which often

include U.S. citizen children—face an uncertain future with

no way, under the current immigration laws, to fix their

immigration status and give security to their families.

If apprehended, on the other hand, these individuals can

face criminal prosecution and lengthy incarceration, and

can also have their prior order “reinstated.” For individuals

who never got a fair hearing and a chance to defend their

rights the first time, this punitive system recycles old

errors and offers virtually no way for individuals unjustly

deported to have their orders reviewed and expunged.

Such a strict and harsh aftermath is not accidental, but

rather is part of a larger DHS strategy to reduce returns

without authorization by increasing the difficulty and

consequences of returning.21 The success of this strategy in

deterring unlawful migration is questionable.22 But what is

apparent is that these stacked penalties disproportionately

hurt people with ties to and potential legal rights to stay in

the United States. Asylum seekers who face real threats in

their countries of origin will continue to look for protection

in the United States; many told the ACLU that they would

rather be in jail in the United States than dead in their

homelands. Individuals with family obligations, particularly

parents of young U.S. citizen children, will brave the threat of





KEY RECOMMENDATIONS

To ensure that individuals facing deportation have the opportunity to be heard and defend

their rights, the U.S. government should do the following:

1. Provide a full removal hearing and a chance to be heard before an immigration judge

to individuals with claims to be in the United States—for example, asylum seekers or

individuals with strong equities such as close U.S. citizen family, strong community

ties, or long residence in the United States.

2. Continuously train and retrain immigration enforcement officers not to use coercion,

threats, or misinformation to convince individuals to give up the right to see a judge

and to accept deportation.

3. Recognize and expand the rights of individuals deported without a hearing to seek

review of their deportation order.

4. Reduce the use of criminal prosecution for illegal entry or reentry and ensure that

individuals with claims to be in the United States, such as asylum seekers, have the

opportunity to present their claims before being referred for prosecution.

5. Make sure that all people facing deportation through a summary removal procedure

are given the chance to consult with a lawyer before they are ordered removed, and

provide lawyers to vulnerable individuals such as children and people with mental

disabilities who are facing deportation or repatriation.

6. Ensure that all individuals detained by immigration enforcement agencies are treated

with respect and dignity, that detention conditions are humane, and that detention is

used only as a last resort and for the shortest time possible.

A complete list of recommendations is set forth at the end of this report.





METHODOLOGY

This report is a qualitative study on deportations without

hearings that aims to illustrate who is deported without

seeing a judge and to identify the shortcomings of the

summary removal proceedings that lead to deportations

in violation of U.S. obligations under international

and domestic law. The report is based on 136 cases of

individuals removed from the United States, without

seeing an immigration judge, through a summary

removal proceeding such as expedited removal, voluntary

return, administrative removal, or a stipulated order of

removal. Of the stories included in this report, 94 are from

individuals interviewed in person or by phone; 6 cases were

documented based on interviews with family members

where the individual had been deported and could not be

reached (and, in at least one case, murdered). The ACLU

documented the remaining 36 cases by reviewing case

files, wherever available, and publicly available pleadings.

Attorneys were asked to obtain consent from their clients

before providing case documents to the ACLU; in a few

cases where the individuals had either been removed or

could no longer be located, attorneys provided redacted

copies of the individuals’ cases to the ACLU without the

individuals’ names or other identifying information.

In the United States, the ACLU conducted interviews

in person and by phone with individuals in Arizona,

California, Florida, New Mexico, and Texas. In Mexico,

the ACLU conducted in-person interviews with recent

deportees and advocates in Agua Prieta, Ciudad Juárez,

Matamoros, Nogales, Reynosa, and Tijuana. In addition to

these in-person interviews, we interviewed some migrants

at shelters in southern Mexico by phone. Finally, the

ACLU conducted several additional interviews by phone

with individuals who had been deported to, and were

still in, England, Canada, and India. All interviews were

conducted by Sarah Mehta, Human Rights Researcher for

the ACLU, and, where necessary, with an interpreter. All

individuals were informed that their interviews were to be

used in a public report on deportations without hearings.

In this report, we have included only the interviews with

individuals who were deported without seeing a judge but

have excluded individuals with in absentia orders unless

those individuals were subsequently removed from the

United States by a summary removal procedure.

Many individuals interviewed for this report were still in

immigration proceedings at the time of their interview;

others were contemplating an attempt to rejoin their

families in the United States after being deported. To

protect the anonymity of these individuals, only first

names are used in the report. For unaccompanied

children, all names have been changed to pseudonyms.

For all individuals with attorneys, we were able to obtain

and review the immigration and, where relevant, federal

prosecution records. In some cases where an unrepresented

individual still had their removal documents, we were able

to review those documents as well.

The ACLU also interviewed 69 attorneys and advocates—

including immigration attorneys, defense attorneys

working on illegal entry or illegal reentry cases, Mexican

migrant shelter staff, Mexican lawyers and advocates, and

community organizers and activists in the United States—

about summary removal practices and processes and their

effects on the individuals removed, their families, and the

community. We also met with Mexican immigration and

consular staff who interview Mexican nationals before and

after their removal to the United States.

In addition to information obtained from the individuals

and their attorneys, the ACLU submitted six requests

for information under the Freedom of Information Act.

These requests were submitted to the Department of

Homeland Security, including Immigration and Customs

Enforcement and Customs and Border Protection, and to

the Department of Justice, including the Executive Office

of Immigration Review and the Office of Immigration

Litigation. Some of these requests have not been yet

answered, and other requests are currently being litigated.

Where responses were provided, the ACLU analyzed the

information for this report. Requests and responses are

provided online at www.aclu.org.

Some of these findings were informally shared with federal

government agency staff while the report was being drafted.





the rights to life, liberty, and property, “or of all that makes

life worth living.”25

This recognition of deportation as a “drastic deprivation”26

with severe, reverberating consequences both for the

individual and his or her family in the United States is not

reflected in the procedures used to deport. In immigration

court, despite the well-known complexity of immigration

law,27 there is no established right to a lawyer provided by

the government, and the majority of immigration detainees

are consequently alone and unrepresented in extremely

complex immigration proceedings where the government

is represented by an attorney.28 Even children as young as

five years old go forward in confusing and intricate legal

proceedings without a lawyer.29 But increasingly, those who

actually get a hearing before an immigration judge are the

exception.

In 1996, Congress passed a series of sweeping and

restrictive immigration laws, including the Illegal

Immigration Reform and Immigrant Responsibility Act

(IIRIRA), which established summary removal procedures

by which immigration enforcement officers could

not only arrest and detain non-citizens but could also

I. SUMMARY DEPORTATION PROCEDURES: AN INTRODUCTION

Where Did This Come From?

In a country built on immigration, U.S. law has historically

recognized the importance of fair hearings for those whom

the U.S. government wants to remove. In 1903, the Supreme

Court of the United States recognized that the Due Process

Clause of the Fifth Amendment to the U.S. Constitution

applies in cases where the government seeks to deport those

who have already entered the United States.24 Similarly, the

Supreme Court has repeatedly recognized that deportation

often carries grave consequences, and therefore implicates

Undocumented Guatemalan immigrants are searched before boarding a deportation flight to Guatemala City, Guatemala.

John Moore/Getty

AMERICAN CIVIL LIBERTIES UNION10




criminal charges against them.”33 MPI estimates that 84

percent of the growth in deportations stems from the use

of a summary removal procedure where the individual

is deported without seeing a judge.34 Previously, some

non-citizens arriving at the border without authorization

to be admitted were referred to an immigration judge;

others were allowed to “withdraw” their application.

Individuals who are “informally” returned and allowed to

withdraw their applications do not have a removal order

and may be able to apply for visas and apply for relief in

the United States in the future. While individuals may still

withdraw their applications at the border, CBP increasingly

issues formal deportation orders to these individuals.

As discussed at length in this report, a formal removal

order—even one issued by a law enforcement officer and

not a judge—has significant immediate and long-term

adjudicate their claims, with limited review by courts.30 As

a result, the majority of people deported from the United

States—approximately 83 percent in 2013—are removed

without seeing a judge, with limited procedural safeguards,

with few opportunities to make claims to remain in the

United States, and yet with significant consequences.

The procedures created and expanded, and now used

to remove people without a hearing, include expedited

removal, reinstatement of removal, administrative removal,

stipulated orders of removal, and administrative voluntary

departure (known as voluntary return).

The 1996 laws that created these removal mechanisms

assumed they would be applied to “arriving” immigrants

who had no rights to be in the United States; today, most

individuals apprehended at the border are considered

priorities for removal as “recent border crossers” although

many such individuals are apprehended in the interior

of the United States. In fact, the individuals processed

through these rapid, truncated procedures include

individuals who have lived most of their lives in the

United States, asylum seekers, people with valid business

and tourist visas, and sometimes, even U.S. citizens.31

Who Is Deported Through These Processes?Today, approximately 83 percent of people deported from

the United States are removed without a hearing or a

chance to present their claims to an immigration judge.

Around 44 percent of all those deported in fiscal year

(FY) 2013 were deported through expedited removal, a

procedure where there is virtually no opportunity (and

very restricted rights) to consult with a lawyer and submit

defenses, and very limited right to judicial review.

A recent report from the Migration Policy Institute

(MPI) observed that at the border, the number of

apprehensions (i.e., people coming into the United States)

is declining: in FY 2000, the number of apprehensions

was 1.7 million people, whereas in FY 2013, it was

421,000.32 Nevertheless, deportation numbers are rising

because Customs and Border Protection (CBP), which

is the primary immigration enforcement agency at U.S.

international borders, now “places a larger share of those it

apprehends in formal removal proceedings and/or brings

2008 2009 2010 2011 2012 20130

125,000

250,000

375,000

500,000

Expedited Removal

Reinstatement

Total Removals

Source: Department of Homeland Security, Office of Immigration Statistics, Annual Report,

Immigration Enforcement Actions: 2010, available at http://www.dhs.gov/xlibrary/assets/

statistics/publications/enforcement-ar-2010.pdf; Id., Immigration Enforcement Actions:

2011, available at http://www.dhs.gov/sites/default/files/publications/immigration-statistics/

enforcement_ar_2011.pdf; Id., Immigration Enforcement Actions: 2012, available at http://www.

dhs.gov/sites/default/files/publications/ois_enforcement_ar_2012_1.pdf; Id., Immigration

Enforcement Actions: 2013, available at Immigration Enforcement Actions: 2013.

FIGURE 2

The Growth of Expedited Orders of Removal and Reinstated Orders of Removal FY 2008–FY 2013The total number of removals each year includes expedited

removal, reinstatement, administrative removal, stipulated

orders, and judicial orders (issued by an immigration judge).





maintain a complete record of all testimony and evidence

produced at the proceeding.41 Perhaps most critically,

given the absence of appointed counsel for immigrants

facing deportation, an immigration judge is obligated to

tell a person facing removal of his or her eligibility for

relief from deportation and his or her ability to apply for

it. If an individual is ordered removed by an immigration

judge, that individual can appeal that decision to the

Board of Immigration Appeals (another entity within

the Department of Justice); if unsuccessful on appeal, the

individual can further petition for review of the decision to

a federal court of appeals.

Undoubtedly, the current immigration court system is

far from perfect. The immigration courts are notoriously

under-resourced,42 and, in the absence of appointed

(government-funded) lawyers, many people (including

children and people with mental disabilities) represent

themselves in complicated legal proceedings.43 Immigration

court hearings are often very quick, and the results vary

drastically by courtroom and location, and depending on

whether the individual has a lawyer.44 Nevertheless, they

offer critical procedural and substantive protections that

are utterly absent in summary removal processes: a judge is

trained in immigration law and part of a different agency

from the one detaining and seeking to deport the non-

citizen; a court hearing provides the opportunity to collect

and present evidence and to retain counsel; and certainly

compared with a Border Patrol station, a courtroom is a

more public and less coercive space.

consequences and makes returning to the United States in

the future very difficult.

At the same time, simply allowing individuals to withdraw

their claims is not always the most rights-protective path,

particularly for asylum seekers. Refusing to allow a person

into the United States to apply for asylum and returning

him or her to a country where he or she faces danger

violates domestic and international human rights law.35

But the current practice of deporting asylum seekers with

a formal deportation order and without the opportunity to

present their claims not only denies an individual his or her

right to seek asylum, but also comes with increasingly harsh

and punitive consequences, as discussed in this report.

Why an Immigration Hearing MattersRemoval proceedings under Section 240 of the

Immigration and Nationality Act (INA) are conducted

in court and presided over by an immigration judge.36

A removal proceeding starts with the service of a Notice

to Appear (NTA), which informs the non-citizen of the

immigration charges against him or her (i.e., the grounds

upon which he or she is believed to be removable from

the United States). The NTA also triggers Miranda-like

protections: once the NTA has been filed, the person

charged must be informed of their right to be represented

at their own expense by a lawyer and that any statements

made during interrogation can be used against them in the

removal proceedings.37

In charging a person (through the NTA), immigration

officers are also supposed to use prosecutorial discretion to

determine whether or not to initiate removal proceedings.38

Some of the factors immigration officers should consider

include length of residence in the United States and family

ties and relationships.39

When a non-citizen appears before an immigration judge,

he or she is entitled to certain procedural protections

so that the hearing is fair. For example, a person in

immigration court facing removal has the right to present,

challenge, and examine evidence and has the right to a

lawyer (currently at his or her own expense, except in

limited circumstances).40 Immigration courts must also

The immigration courts are notoriously under-resourced. Nevertheless, they offer critical procedural and substantive protections utterly absent from summary removal processes.





non-lawyers, inundated with other law enforcement

responsibilities, to evaluate a person’s legal claim with

limited opportunities for review of an erroneous order is

predictably high.

As the MPI report observed, while deportation procedures

that do not require a hearing may be speedy, “these gains

in ‘efficiency’ come at a cost in terms of the ability of the

system to identify people with strong equities in the United

States who, prior to IIRIRA, might have been able to

petition an immigration judge for relief from removal.”46

Immigration and Customs Enforcement (ICE), which

largely operates in the interior of the United States, applies

prosecutorial discretion in determining whom to deport

and to place in deportation proceedings, but CBP has not

developed any similar guidance.47 Thus, when the mother

The Limitations of Deportation Procedures without Hearings Summary deportation procedures that bypass the courtroom

are hazardous because they offer little to no opportunity

for individuals to advocate for their rights; rather, these

processes rely on immigration officers to be the prosecutor,

judge, and jailor. And while review may be even more

important for individuals ordered deported in a summary

process by someone untrained in immigration law, judicial

review and the opportunity to appeal and correct an unfair

or illegal removal order is considerably circumscribed.

In recent years, DHS has favored the use of formal removal

orders as part of its package of penalties under the

“Consequence Delivery System.” This program is intended to

deter unlawful entries through more punitive measures such

as the use of formal removal orders; “lateral” deportations,

where people are deported far from where they entered the

United States; and criminal prosecution of immigration

offenses such as illegal entry and illegal reentry.

When processes like expedited removal were first

introduced and then expanded across the border, agency

and congressional officials applauded this move to bypass

the courtroom as an efficient way to accelerate deportations

and save costs.45 However, the costs to those wrongfully

removed through summary deportation processes are

extreme. And the risk of error in a system that expects

Source: Marc R. Rosenblum & Kristen McCabe, Migration Policy Institute, Deportation and Discretion: Reviewing the Record and Options for Change (2014) (based on ICE data analyzed by

Migration Policy Institute), available at http://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-change.

Arrest Location

Removal Type Border Interior Unknown Total

Judicial 331,385 (16%) 804,319 (61%) 148,859 (65%) 1,284,563 (35%)

Expedited Removal 1,119,770 (53%) 37,473 (3%) 13,159 (6%) 1,170,402 (32%)

Reinstatement 662,331 (31%) 385,164 (29%) 46,323 (20%) 1,093,818 (30%)

Administrative Removal 9,330 (0%) 96,087 (7%) 21,959 (10%) 127,376 (3%)

FIGURE 3

Summary and Judicial Removal Orders FY 2003–2013 — Border and Interior

On November 20, 2014, DHS issued a new

memorandum on prosecutorial discretion that applies

to all its agencies, including CBP. This memorandum

continues to prioritize noncitizens apprehended at

the border “unless they qualify for asylum or another

form of relief.” How this is memorandum will be

implemented and qualifying individuals identified at

the border remains to be seen.

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_

discretion.pdf

Update





less protective forms of relief, as shall be subsequently

discussed. A father who had lived in the United States for

over a decade might be eligible for non-LPR (non-lawful

permanent resident) cancellation of removal based on

family ties and other favorable factors, but if he is arrested

at a port of entry, he can instead be quickly deported

through expedited removal.

These differences are significant and can mean very

different outcomes for an individual, not based on their

individual circumstances but based on who is weighing

their rights. And yet, compared with someone who

had a full immigration hearing resulting in his or her

deportation, the penalties are just as severe: a person

ordered deported by a DHS officer is generally subject to

the same requirements to remain outside of the United

States and accrues the same significant penalties if he or she

tries to return without authorization.

Although the numbers suggest that these non-judicial

procedures are the default, in fact, an immigration

enforcement officer does have the option to refer a non-

citizen to a full hearing in an immigration court even

where the non-citizen is eligible for a summary removal

procedure. Such a referral would be advisable in several

circumstances: for example, where the person may have a

claim to remain in the United States or requires additional

assistance due to his or her age or a disability. But it appears

that most DHS officers are not using their discretion to

refer a person to immigration court and all the benefits

that come with it; instead, most people deported today are

expelled through these quick but deficient proceedings.

These procedures are short-circuited on their face but

even more problematic in practice, when administered

by officers who may have insufficient training and (at

the border in particular) may feel pressured to accelerate

their processing responsibilities. The procedures

themselves—expedited removal, reinstatement of removal,

voluntary return, administrative removal, and stipulated

removal—are, in practice, coupled with intimidation,

misinformation, and coercion so that while they may be

successful in boosting the number of people deported,

they cannot be relied upon to guarantee a fair process or to

deliver justice.

of U.S. citizen children who has lived in the United States

for a decade arrives at the border after a short trip to see a

dying relative, she is treated the same as a person arriving

in the United States for the first time—even though CBP

could refer her to a judge who could weigh the equities of

her case.

As discussed in the following sections, there are two

principal differences between a hearing in immigration

court and a removal procedure run by a DHS official; one

is procedural and the other substantive. First, procedurally,

a person in immigration court has more rights and

opportunities to inspect and present evidence, get a lawyer,

and be informed by a neutral arbiter of their rights and

eligibility for relief. Immigration judges are required to

inform unrepresented immigrants of any relief they may

be eligible for. A similar responsibility does not exist in

summary removal proceedings (and indeed, given that the

officer conducting the process is generally not a lawyer, it

is unlikely that he or she will even know those options). In

some processes like expedited removal, the individual has

a very limited right to a lawyer and is held in mandatory

detention throughout the process.

Second, substantively, people who are diverted from the

courtroom and instead processed through a summary

removal procedure are barred from applying for some

forms of relief from removal that would be available to

them in immigration court. Individuals in administrative

removal or whose prior deportation orders are “reinstated,”

for example, are barred from seeking asylum and can

generally apply only for “withholding of removal” or

relief under the Convention Against Torture (CAT) if

they fear returning to their country of origin, which are

DHS officers have the option to refer a person to a full hearing in immigration court; in practice, this discretion appears to be rarely used.





The only statutory exceptions to expedited removal

are individuals who express a fear of persecution and/

or the intent to apply for asylum, as well as people who

claim to be U.S. citizens, lawful permanent residents

(LPRs), or refugees.55 If a DHS officer cannot determine

a person’s status, an immigration judge is supposed to

review the decision to place the individual in expedited

removal.56 Individuals claiming a fear of persecution

or intent to apply for asylum must be referred for an

interview with an asylum officer known as a “credible fear

interview”(discussed at greater length later in this report).57

The statutory scheme has been interpreted by some courts

to provide only very limited judicial review of an expedited

removal order. For example, according to those courts,

U.S. citizens, LPRs, and individuals with refugee or asylum

status, along with people claiming they were not deported

through expedited removal, are the only individuals who

can get judicial review of an expedited removal order. 58 So,

for example, individuals attempting to apply for asylum but

denied that opportunity have no recourse in federal court.

Expedited removal was initially—and explicitly—created

to facilitate the rapid removal of individuals considered

to be “arriving” immigrants without a judicial hearing.59

The procedure, which became mandatory at ports of entry

in 1997, was expanded first in 2002 to some non-citizens

arriving by sea,60 and then more dramatically in August

2004 to some non-citizens found within the United States.

Specifically, the 2004 expansion applied to non-citizens

who meet the other criteria for expedited removal if they:

A. EXPEDITED REMOVAL

The Expedited Removal Statute and Its History Aside from reinstatement orders, expedited removal

orders account for the largest number of deportations in

the United States. In FY 2013, almost 200,000 individuals

(44 percent of all deportations) were deported through

the expedited removal process.48 In expedited removal, a

non-citizen is ordered deported by an immigration officer

(not a judge) while detained, with a very limited right to a

lawyer and with very limited opportunities to seek review

of the order even if it was unlawful.

The expedited removal statute applies to certain

“inadmissible” individuals who arrive without valid travel

documents or who attempt to enter through fraud or

misrepresentation.49 The law states that an officer who

encounters such a person “shall order the alien removed

from the United States without further hearing or review.”50

Moreover, an “inadmissible” individual in expedited

removal “is not entitled to a hearing before an immigration

judge . . . or to an appeal of the expedited removal order

to the Board of Immigration Appeals.”51 Unlike other

summary removal procedures discussed in this report,

expedited removal is geographically limited and is used

at (1) ports of entry, such as an airport; (2) for people

arriving by sea; or (3) against a non-citizen apprehended

within 100 miles of any land border who has not been

admitted or paroled and who cannot prove that he or she

has been in the country for at least two weeks.52

Those issued an expedited removal order are barred

from returning to the United States for a minimum of

five years.53 Individuals with a prior removal order are

subject to a 20-year ban on readmission; individuals

ordered removed with a finding of fraud face a potentially

permanent, unwaivable bar on return to the United

States.54 Individuals with an expedited removal order can

be criminally prosecuted for reentering the United States

without permission and are also frequently placed in

reinstatement proceedings, discussed later in this report,

where their opportunities for relief are extremely limited.

“Expedited removal as it exists today takes place in a black box, with unchecked deportation authority by gun-wielding Border Patrol agents and immigration inspectors.” — Mark Hetfield, Hebrew Immigrant Aid Society (HIAS)61





removal, is deported from the United States without

further review or a hearing.66

Expedited removal was controversial from the outset, and

previous attempts to introduce it (as “summary exclusion”)

had been rejected.67 It continues to be a contentious

and problematic procedure that short-circuits justice to

advance expediency. At its core, it is a process that assumes

a border official can easily identify people arriving in the

United States for the first time who have no right to enter

and for whom all a judicial hearing would accomplish

would be an extended detention. And yet, even when

expedited removal was first implemented, the Immigration

and Naturalization Service (INS)68 acknowledged that

expanding the procedure beyond individuals arriving at the

border to non-citizens already in the United States would

“involve more complex determinations of fact and [be]

more difficult to manage.”69

The expansion of expedited removal beyond ports of entry

and across the entire border zone dramatically changed

the landscape of immigration enforcement. Explaining the

significance of this expansion, the American Immigration

Law Foundation observed,

Are present in the United

States without having been

admitted or paroled following

inspection by an immigration

officer at a port of entry;

Are encountered by an

immigration officer within

100 miles of the U.S.

international (land) border;

and

Cannot establish to the

satisfaction of an immigration

officer that he or she has been

continuously and physically

present in the United States

during the 14 days prior to the

encounter with immigration

authorities.62

The notice announcing this

expansion stated that DHS could

use prosecutorial discretion in expedited removal so that

the geographic expansion would apply “only to (1) third-

country nationals [not from Mexico or Canada] and (2) to

Mexican and Canadian nationals with histories of criminal

or immigration violations, such as smugglers or aliens who

have made numerous illegal entries.”63

Even before expedited removal’s expansion, lawmakers

and advocates were concerned about its impact on asylum

seekers, who generally do not have proper documentation

with them or prior authorization to enter the United States

when they arrive seeking protection. As noted before,

and as discussed in greater detail later in this report, in

recognition of this risk, the expedited removal statute states

that if an immigrant “indicates either an intention to apply

for asylum . . . or a fear of persecution, the officer shall

refer the alien for an interview by an asylum officer.”64 If an

asylum officer finds the individual does not have a “credible

fear” of persecution in his or her country of origin, the

asylum seeker may appeal that finding to an immigration

judge.65 But if the immigration judge also finds against

him or her, the non-citizen, like others subject to expedited

Expedited removal applies to individuals encountered at the U.S. border, defined by the U.S. government as within 100 miles of the U.S. land border.





and historical commitments.”75 Although the amendment

passed the Senate with bipartisan support, it was

subsequently removed.76

The version of expedited removal that became law in

1996 eliminated the opportunity for a hearing before

an immigration judge for most people arriving in the

United States; however, some explicit protections were

provided for asylum seekers. These statutory safeguards

were intended to ensure that asylum seekers—who

frequently arrive without prior authorization or valid

travel documents (particularly when fleeing persecution by

the government that issues those documents)—were not

deported through expedited removal and also to safeguard

their opportunity to claim asylum in the United States.

Under the expedited removal statute, individuals who

express a fear of returning to their home country and/or

an intention of applying for asylum cannot simply be

deported; rather, the immigration officer must refer

these individuals for a credible fear interview conducted

by asylum officers with United States Citizenship and

Immigration Services.77 Individuals found to have a

“credible fear” are then referred to an immigration judge

under the Executive Office for Immigration Review (EOIR)

for a hearing. If a person is found not to have a credible

fear, he or she may contest that finding and request a

hearing in front of an immigration judge.78

Despite these requirements, even in its initial years, when

expedited removal was confined to ports of entry, the

expedited removal process failed to adequately identify

and protect arriving asylum seekers. In 2001, after several

documented stories of legitimate asylum seekers being

deported through expedited removal emerged, Senators

Samuel Brownback, Edward Kennedy, and Patrick Leahy

attempted to correct expedited removal and provide

more protection for asylum seekers through the Refugee

Protection Act of 2001, which never passed.79 In 2004,

Congress commissioned a study from the U.S. Commission

on International Religious Freedom (USCIRF), which

similarly found that immigration enforcement officers

failed to refer asylum seekers to an asylum officer, even

when they explicitly stated their fears of persecution or

torture.80 USCIRF’s suggested reforms, discussed later in

this report, were not adopted. Instead, in 2005 after the

For the first time, a non-citizen who has made a

land entry into the United States can be removed

without the procedural safeguards of a removal

hearing, including the right to counsel, right

to cross-examine the government’s witnesses

and examine the government’s evidence,

and significantly, the right to an impartial

adjudicator.70

Although expedited removal is used almost reflexively

along the border, its use is not actually mandatory. The

Board of Immigration Appeals, analyzing the expedited

removal statute, has held that DHS retains discretion to

put non-citizens subject to expedited removal in formal

removal proceedings in front of an immigration judge.71

Similarly, supplemental information in the notice to

expand expedited removal suggests that DHS has discretion

to exempt someone from the procedure and to instead

afford them a hearing or allow them to voluntarily return

to their home country.72 As commentators observed, the

notice providing DHS officials with discretion not to place

a person in expedited removal included no guidance on

how to make this decision.73

Expedited Removal and AsylumIn 1996, although the U.S. House of Representatives

overwhelmingly approved IIRIRA, the U.S. Senate rejected

some of its provisions, including one limiting protections

for asylum seekers.74 That same year, Senators Patrick Leahy

and Mike DeWine introduced an amendment to restrict

the use of expedited removal “to times of immigration

emergencies” certified by the U.S. Attorney General; as

Senator Leahy observed, “This more limited authority

was all that the Administration had requested in the first

place, and it was far more in line with our international

Most people with an expedited removal order—even an unlawful one—can never get it reviewed by a judge.





with an expedited removal order can never get a judge to

review the circumstances of that order, even when it was

unlawful. Whereas U.S. citizens, LPRs, and asylees may at

least be able to get judicial review, many people erroneously

removed will not and yet live with the consequences of a

formal removal order.82

Rosalba, a 56-year-old Mexican woman who never

overstayed her tourist visa, was issued an expedited removal

order at a port of entry in Texas when driving to visit her

husband, who has lung cancer and lives in the United

States. Although the U.S. Consulate in Mexico agrees that

the order was unfair and that Rosalba never overstayed her

visa, it has no authority to remove or ignore the order. She

is saving money to apply for a waiver so she can see her

husband again.

Maria, a U.S. citizen, was issued an expedited removal order

and deported to Mexico because the immigration officer

did not believe a U.S. citizen would speak only Spanish. She

has only recently returned to the United States after over

a decade in limbo in Mexico and two failed attempts to

return and be recognized as a U.S. citizen at the U.S. border.

Nydia R., a transgender woman from Mexico, not only

had status as an asylee when she was issued an expedited

removal order but had also recently been attacked by a

gang in Mexico. CBP officers wrote on her sworn statement

for the expedited removal order that she had no fear of

removal, despite recording her account of the violence she

had just suffered. She was attacked and repeatedly sexually

assaulted after her unlawful deportation to Mexico.

As courts have recognized, expedited removal gives

immigration officers incredible power and discretion; not

only do officers refuse entry to someone based in many

cases on subjective assumptions and with little supporting

evidence, but an expedited removal order comes with

significant penalties and almost no opportunity for

review.83 And yet, despite these consequences, the processes

and protections associated with expedited removal are,

facially and in practice, disturbingly circumscribed. 84

report was published, the expedited removal system was

expanded and now accounts for 44 percent of deportation

orders from the United States.

In Practice TodayExpedited removal is used extensively not only at ports of

entry but also in border communities within 100 miles of

the international border. It is not a targeted program that

is applied only to individuals with no claims for relief or

with significant criminal history; rather, it is a procedure

used almost as a default all along the U.S. border.81 At ports

of entry, as this report documents, expedited removal

orders have been issued against longtime residents who

left the United States briefly; people with status, including

U.S. citizens; individuals traveling on valid business and

tourist visas; and asylum seekers who were never given

the opportunity to request asylum. In these cases, a

border official made the decision that the individual was

misrepresenting him or herself or intended to immigrate

and, often without providing any evidence to support his

or her finding, issued a removal order that led to separation

from family, and which in some cases had life-threatening

consequences.

Advocates interviewed for this report said it is incredibly

rare to get an order rescinded by border officials; however,

given the limitations of judicial review, most individuals

The sole procedure for judicial review of expedited removal—habeas corpus—is narrow and onerous. Unsurprisingly, between 2009 and 2014, only 27 such petitions were filed.Source: Response from Department of Justice to ACLU Freedom of Information Act, Office of

Immigration Litigation (OIL) Cases Received During Fiscal Years 2009 through 2014 (Received

October 16, 2014), available at www.aclu.org.





United States for over a decade since their deportation,

raised U.S. citizen kids, and built a life in the United

States are cut off from virtually all avenues of remaining

in the United States due to the prior order. And unlike

expedited removal, reinstatement proceedings take place

everywhere in the country.94 A person with a reinstated

order is barred from reentering the United States for up to

20 years—unless they have an aggravated felony conviction,

in which case they are barred for life.95 Individuals who

reentered illegally after April 1, 1997, after a prior order

are inadmissible and are not eligible to apply for a waiver

to reenter the United States for another 10 years after their

deportation.96 In addition to these “civil” penalties, a person

who reenters the United States after being deported can

be federally prosecuted for illegal reentry.97 In fact, federal

prosecutions for these crimes (illegal entry and reentry)

account for the vast majority of federal prosecutions

today.98

Moreover, with limited exceptions, the statute holds that

once a removal order has been reinstated, “the [person]

is not eligible and may not apply for any relief under this

Act.”99 For many individuals facing reinstatement of a prior

order, the only relief they can apply for—assuming they are

made aware of it—is mandatory protection for individuals

who can demonstrate a reasonable fear of torture or

persecution in their country of origin.100

Again, DHS has the option of using its discretion to

terminate the reinstatement process (and either cancel the

reinstatement order, refer the person to a full immigration

court hearing, or defer the deportation). Doing so allows

individuals access to stronger procedural rights to develop

and pursue their case and opens up other forms of relief

B. REINSTATEMENT OF REMOVALOver the last several years, the largest number of removal

orders have been “reinstatement orders,” which are issued

by DHS officers against individuals who illegally reentered

the United States after departure under a prior order.85

In FY 2013, DHS deported 159,634 people through

reinstatement.86 Prior to 1997, individuals who had

previously been deported and returned illegally had the

right to a hearing before an immigration judge in which

they could apply for any relief for which they were eligible.

After 1997, however, such individuals face summary

removal without an immigration judge hearing, a bar to

relief from removal and other statutory obstacles.

Although DHS has the discretion to place an individual in

regular removal proceedings before a judge,87 individuals

who reenter after their deportation—unless they fit within

certain statutory exceptions88—frequently have their prior

removal orders “reinstated” by DHS officers without a

hearing and without a meaningful chance to raise defects in

the prior order or explain why a reentry may be lawful. As

with other summary removal processes, in the reinstatement

process, the DHS officers act as the prosecutor, judge, and

jailor and can issue a reinstatement order very quickly.

In reviewing an order for reinstatement, a DHS officer

must confirm the identity of the non-citizen, the prior

order of deportation, and that the individual reentered

the United States unlawfully.89 As part of this proceeding,

a DHS officer will conduct an interview, generally under

oath, resulting in a written sworn statement signed by the

non-citizen and a second officer.90 The officer must provide

non-citizens with written notice that they are removable

and inform them that they may make a statement

contesting this determination.91

An individual whose order is reinstated can appeal the

determination to the appropriate circuit court of appeals

within 30 days of the order.92 The record for this review

is limited, as a court of appeals can only review the

administrative record on which the reinstated order was

based.93

Immigration law does not have a statute of limitations for

old removal orders; thus, individuals who have lived in the

With limited exceptions, once a removal order is reinstated, the person is not eligible and cannot apply for relief from deportation.





Seeking Refuge: Credible Fear vs. Reasonable Fear

Non-citizens who arrive in the United States and

hope to seek asylum may do so if they have

suffered or fear they will suffer persecution on the

basis of their race, religion, nationality, membership

in a particular social group, or political opinion.

As discussed earlier, these individuals must pass a

credible fear interview, administered by an asylum

officer from USCIS (United States Citizenship

and Immigration Services), and will then see an

immigration judge who evaluates their claim.

Asylum includes many critical benefits, such as the

right to stay and work in the United States, a path

to applying for lawful permanent residence in the

United States (and eventually citizenship), and

the ability to bring family members to join them

in the United States. To be eligible, individuals

must demonstrate a “credible fear” of persecution

or torture—defined as “a significant possibility”

that the individual (1) is eligible for asylum under

INA § 208 because of past persecution or has a

“well-founded fear” of future persecution101 or (2) is

eligible for withholding of removal or deferral of removal

under CAT, under 8 C.F.R. § 208.16 or § 208.17.102

But individuals with prior removal orders (or those who

have certain convictions) are not eligible for asylum

and must meet a higher standard of proof by showing

a “reasonable fear” of persecution or torture. These

individuals must demonstrate a “reasonable possibility” of

future persecution or torture.103 Withholding of removal

(under CAT and the Refugee Convention) and deferral of

removal (under CAT) are important protections available

for individuals with reinstated orders of removal, as they

must be in order to comply with U.S. obligations under

international human rights law. But these processes and

their benefits are not equivalent. First, as indicated by the

Asylum Office of USCIS, the standard for “reasonable fear”

is higher than the standard of proof required to establish a

“credible fear” of persecution.104 For example, for a person

in reinstatement proceedings, it is not enough to show past

persecution “regardless of the severity of that persecution,”105

even though such evidence would suffice for a person to

show credible fear of persecution.

Moreover, while the U.S. Supreme Court has observed that

a 10 percent risk of future persecution might be sufficient

to show a well-founded fear of persecution to support a

grant of asylum,106 courts have required immigrants seeking

withholding to demonstrate at least a 51 percent likelihood

of suffering future persecution.107 Thus, individuals who

might meet the lower threshold in a credible fear interview

may have more difficulty passing a reasonable fear interview

based on identical facts. Moreover, immigrants seeking

protection while in reinstatement proceedings are likely to be

detained for a long period of time. For years, advocates have

been concerned about the delays applicants face in getting

the interview with an asylum officer; although delays for the

credible fear interview appear to be declining, individuals

subject to reinstatement awaiting a reasonable fear interview

will wait in detention an average of 111 days.108 Finally,

for a person who wins withholding of removal or deferral

of removal, the full benefits of asylum are foreclosed; for

example, he or she will not have the right to petition to bring

his or her family to the United States. He or she can never

travel internationally and cannot petition for derivative

(lawful immigration) status for his or her children.109

Police patrol a gang-dominated neighborhood in Honduras. Many Hondurans are fleeing the extreme violence in search of protection in the United States.

Spencer Platt/Getty





* * *

Underlying the reinstatement statute and its short-circuited

procedures is an assumption that non-citizens who were

previously deported have had their day in court. As the

Second Circuit stated, without analysis, in Garcia-Villeda v.

Mukasey, “[T]he reinstatement of removal statute expressly

prohibits us from giving petitioner a second bite at the

apple.”112 But many people never had a first bite at justice,

and these abbreviated reinstatement proceedings do not

provide a real opportunity for the governmental agency or

the courts to hear or correct mistakes in prior orders.

The reinstatement process is particularly harsh when

applied to people who previously were deported in

summary proceedings where they did not have a hearing

before an immigration judge, and thus, had no opportunity

to present evidence, receive legal assistance, or have a

meaningful opportunity to appeal the prior removal

order. The ACLU has documented several cases in this

report where a person was erroneously deported by an

immigration officer, has never had their day in court or

been able to correct the original error, and still is not given

the opportunity to have a hearing with meaningful review.

Narcisco G., who came to the United States in 2002, was

given voluntary departure in 2009, but sick with cancer

and concerned about leaving his three U.S. citizen children,

he never left. He was subsequently detained by ICE after

being arrested for an alleged fight (he believes he was never

charged or convicted), and although he hired an attorney,

he was not allowed to meet with him. Narcisco said all the

forms were in English, which he does not read, and he was

not asked about his fear of returning to southern Mexico or

given the chance to call his family before he was deported

to Reynosa: “The ICE agent said sign the order, and I said

no, my attorney is looking into it. He said, ‘Whether you

want to sign or not, you’re going to be deported.’”113

Hermalinda L., an indigenous asylum seeker from

Guatemala, was placed in reinstatement proceedings

because she had previously been issued an expedited

removal order but returned to the United States after

her deportation. At the time CBP issued an expedited

removal order, she had claimed fear of being removed but

was not referred for a credible fear interview prior to her

removal. Once deported to Guatemala, Hermalinda was

from deportation. In practice, it is unclear how often DHS

officers utilize this discretion, given the speed with which

reinstatement can be accomplished.

In PracticeMany individuals interviewed by the ACLU reported being

told by immigration officers that because they had a prior

deportation order, they had no chance to stay in the United

States and would be deported. Some individuals were not

actually aware they had a prior deportation order, either

because they never received the paperwork or had their

order explained; in some cases, individuals interviewed for

this report had in absentia orders from an immigration

judge but said they never received notice of the hearing

where their deportation order was issued, which is a

statutory ground for rescinding that order. For all these

individuals, however, the near-automatic nature of the

reinstatement process leaves little opportunity to explain

the circumstances in which the prior removal order was

issued—or to challenge it.

Some claims for relief may still be raised in the

reinstatement process. If an individual facing reinstatement

claims a fear of returning to his or her country of origin,

the DHS officer is required to refer him or her to an asylum

officer to determine whether the alien has a “reasonable

fear” of persecution or torture.110 Should the asylum officer

determine that the non-citizen has a reasonable fear of

being removed to their country, the non-citizen must be

referred to an immigration judge to apply for withholding

of removal or relief under CAT.111

Courts have held that the reinstatement statute prohibits a “second bite” to challenge their deportation. But many people never got a first bite at justice.





gang-raped by police and shot because of her oppositional

politics. She left her daughter with family in Guatemala

and once again make the dangerous journey to the United

States. Fortunately, Hermalinda, who was represented by

an attorney, expressed her fear of being deported to ICE

officers and was given a reasonable fear interview. Even

though she had previously claimed fear at the border and

suffered harm after being deported back to Guatemala,

she cannot bring her daughter from Guatemala to join her

even if she wins her claim to withholding of removal in

immigration court.

Some immigrants subject to reinstatement may also be able

to adjust their status in certain limited circumstances.114

In reality, however, even individuals who are not subject

to removal or are eligible to have their orders cancelled

likely will find it difficult to learn about and present these

arguments, given the speed of these proceedings, the

absence of legal assistance, and the lack of a neutral arbiter

such as a judge. A reinstatement order can be entered

immediately after the interview so that the person is

quickly deported, and most individuals are unlikely to have

a lawyer or the opportunity to consult with legal services

prior to their deportation.





Voluntary return, which is reserved for non-citizens with a limited or no criminal history, is often considered to be an immigration “benefit” because the recipient does not receive a formal removal order. That does not mean there are no consequences that accompany voluntary departure. For example, a person who has been unlawfully present in the United States for one year or more and takes voluntary departure is thereafter “inadmissible” for a period of ten years.122 A person unlawfully present for over 180 days but less than one year is inadmissible for a period of three years if he or she takes voluntary departure.123 It is possible for some individuals to get a waiver of this inadmissibility bar, but such waivers are entirely discretionary and available only to individuals who can demonstrate “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent.124 If the waiver is denied, there is no way to appeal or have that denial reviewed.125 A person who reenters the United States before the time bar has run will be subject to an even more severe ground of inadmissibility and will be disqualified from most forms of relief from deportation.126

In PracticeThe relative informality of voluntary return has led to a common misconception that there are no penalties for reentry. Similarly, the lack of formal process in expedited removal leads many immigrants to assume they have been granted voluntary departure when, in fact, they have an expedited removal order (which acts just like a judge-issued removal order).

Voluntary return may act as a benefit for some individuals, but for immigrants with strong claims to relief from removal, voluntary departure is not a rights-protective process. As in other forms of summary proceedings that bypass the courtroom, voluntary return denies an individual the opportunity to apply for relief from deportation, i.e., for ways to remain in the United States. For example, a person who takes voluntary return cannot apply for cancellation of removal, and once he or she has been returned to Mexico cannot apply for programs like Deferred Action for Childhood Arrivals (DACA) that require an individual be in the United States at the time of the application.

Unlike expedited removal, voluntary departure is not

confined to the (already broadly interpreted) border

C. ADMINISTRATIVE VOLUNTARY DEPARTURE/VOLUNTARY RETURN

The StatuteAdministrative voluntary departure, also known as

“voluntary return,” is a summary deportation procedure

by which a non-citizen “accepts” removal from the United

States without a formal removal order. This is not to

be confused with the form of voluntary departure that

is granted by an immigration judge during or after a

formal hearing. Instead, voluntary return is issued by an

immigration officer and bypasses the immigration court

system completely. According to December 2013 statistics

from ICE, 23,455 voluntary returns took place in FY 2013.115

The administrative voluntary departure statute reads, in

part: “The Attorney General may permit an alien voluntarily

to depart the United States at the alien’s own expense …

in lieu of being subject to [removal proceedings before an

immigration judge]….”116 The accompanying regulations

make clear that this process must be voluntary: “Voluntary

departure may not be granted unless the alien requests such

voluntary departure and agrees to its terms and conditions”

[emphasis added].117 Federal courts have similarly confirmed

that a person taking voluntary return may do so only if the

decision is “voluntary and knowing.”118

Under the statute, an individual who accepts voluntary

return has up to 120 days to leave the United States.119

The actual amount of time allotted may vary, as the

implementing federal regulations permit an “authorized

officer” to set the time frame for departure, so long as

it is within 120 days of the non-citizen’s acceptance of

voluntary departure.120 For many non-citizens, having

some period of time to arrange their affairs in the United

States—for example, to make child care and housing

arrangements for family members who stay behind, spend

time with family, close bank accounts, or prepare a place to

live in the country to which they are being deported—is a

key benefit of voluntary return, since deportation is such

a significant rupture in a family’s life. In practice, however,

the ACLU has found that a voluntary return is executed “as

rapidly as logistically possible.”121





individuals who lived unlawfully in the United States for

different time periods.128

In June 2013, the ACLU filed a class action lawsuit

challenging both the adequacy of the form and the abusive

practices used to coerce individuals with rights to remain

in the United States into signing voluntary departure.129

One of the named plaintiffs in the lawsuit, Isidora Lopez-

Venegas, is the mother of an 11-year-old U.S. citizen son

with Asperger’s syndrome. Immigration officers coerced

her to accept voluntary departure, claiming she would

otherwise be detained and separated from her son for

several months, and incorrectly stating that it would be easy

for her to apply for legal status from Mexico.130 Isidora’s son

joined her in Mexico but has not been able to receive the

necessary educational services he needs given his disability.

The ACLU reached a settlement with DHS in August 2014,

under which DHS will be required to do the following:

Provide detailed information—in writing, orally,

and through a 1-800 hotline—regarding the

consequences of taking “voluntary return” to

non-citizens asked to choose between “voluntary

return” and a hearing before a judge;

Cease “pre-checking” the box selecting “voluntary

return” on the forms that DHS officers provide to

non-citizens;

Permit non-citizens to use a working phone,

provide them with a list of legal service providers,

and allow them two hours to reach someone before

deciding whether to accept “voluntary return”;

zone, nor is it applied only to recent border crossers.

Moreover, advocates interviewed for this report expressed

their concerns that people eligible for relief from removal

and/or eligible to adjust status and remain in the United

States are instead being coerced to take voluntary return

by immigration officers without knowing the rights they

are waiving or penalties they will incur. As immigration

enforcement officers are generally not trained to screen

for and evaluate a person’s immigration claims—which

often requires sophisticated legal analysis—they are not

in a position (nor should they be) to advise immigrants

whether voluntary departure is a benefit. Given the speed

of this process and the fact that most people are not

represented by—or even able to contact—an attorney and

by default rely on the arresting or interrogating officer

to explain their rights, there is a significant risk that

individuals with strong claims to remain in the United

States will and have been coerced to give those rights up.

The administrative voluntary departure process is supposed

to include procedural protections to ensure that the person

who agrees to voluntary departure—and waives the right to

go to court and defend their claims—is making a truly vol-

untary decision. For example, federal regulations governing

voluntary departure require that “every decision regarding

voluntary departure shall be communicated in writing on

Form I-210, Notice of Action—voluntary departure” and

authorize a grant of voluntary departure only when the

non-citizen has requested it and accepted its terms.127 In

practice, however, these procedural requirements are not

always fulfilled and, indeed, this form is not even used.

In Southern California, local attorneys and the ACLU of

San Diego & Imperial Counties documented numerous

examples of coercion and misinformation used by

immigration officers to secure a voluntary departure

and the officers’ failure to comply with the regulations’

procedural safeguards. In particular, the ACLU found

that the form immigration officers were actually using

for voluntary return, Form I-826, was legally deficient in

significant ways. For example, the form is silent on the

legal consequences of taking voluntary departure, such

as the loss of significant procedural rights that apply in

immigration court, the relinquishment of forms of relief

that a person cannot apply for outside of the United States,

and the bars on readmission to the United States for

People eligible to remain in the United States are coerced to take voluntary return without knowing the rights they waive or the penalties incurred.





Both Veronica V. and Isidora Lopez-Venegas would have been eligible for cancellation of removal if they had gone before an immigration judge, given their strong family and community ties, their long presence in the United States, and their lack of criminal history. But because they took voluntary return, they lost that opportunity and are subject to the 10-year unlawful presence bar—although they may wait much longer, as they will need to wait until their children (as the “qualifying relatives”) are 21 years old so that they can apply to adjust status.

Isidora Lopez-Venegas, however, will finally have a fair opportunity to present her claims. As previously noted, in August 2014, the ACLU settled its lawsuit against DHS, which has agreed to significant reforms of the voluntary return system in Southern California and to bring back ACLU plaintiffs who were unjustly removed through this practice.133 As this landmark settlement demonstrates, even the U.S. government recognizes the deficiencies of the voluntary return system—but these practices are not unique to California and need to be addressed nationally.

While voluntary departure may help some people, its coercive application can violate due process and result in severe consequences for people who, if they had seen a judge, would today be lawfully in the United States with

their families.

Provide lawyers meaningful access to clients

detained by Border Patrol or ICE;

Cease pressuring or coercing individuals to accept

“voluntary return”; and

Allow ACLU attorneys to monitor compliance with

the settlement agreement for three years.131

The misconduct and abuses challenged in this lawsuit are

not unique to California, however. This report documents

similar stories in other parts of the United States. For

example, in May 2013, Veronica V., a mother of three

young U.S. citizen children who had been living in the

United States for 19 years, was apprehended by police in a

traffic stop near San Antonio, Texas, referred to ICE, and

pressured to sign a voluntary departure form, which was in

English, a language she does not read fluently. Although her

husband secured a lawyer and brought paperwork showing

she was in the process of applying for status, immigration

officers refused to let her speak to an attorney or her family

and deported her, 24 hours later, to Mexico. Although

Veronica repeatedly told the officers that she wanted to see

a judge, she recalls that during several hours of questioning

the officers continually told her that if she did not sign, she

would go to jail. She has been separated from her husband

and children for a year.132

Isidora Lopez-Venegas (pictured above with her family in San Diego, California) was picked up by CBP and coerced into signing a voluntary departure form.





that the non-citizen bypass the courtroom; in fact, it

permits DHS144 to exercise discretion either to process the

individual through a summary 238b process or to initiate

regular removal proceedings before an immigration

judge.145 If there is doubt as to whether the conviction

is an aggravated felony, DHS could issue a Notice to

Appear (NTA) before an immigration judge. Nonetheless,

the statute and its implementing regulations contain

no guidance for the charging officer as to whether a

person should be processed through 238b or referred to

immigration court. Consequently, the decision to place

someone in a summary removal proceeding instead of a

formal court hearing may be arbitrary—but also decisive.146

The difference between a 238b removal procedure

conducted by a DHS officer and a full hearing before a

judge is considerable. A non-citizen’s options for relief

(and, consequently, the outcome of the case) and his or her

procedural rights differ dramatically depending on which

process he or she is referred into. Notably, individuals

D. ADMINISTRATIVE REMOVAL UNDER INA § 238b

The StatuteDHS has an additional expedited removal tool that can

be used anywhere in the United States against certain

non-citizens based on their criminal history. Under

INA § 238(b), DHS has discretion to place non-citizens

who are not lawful permanent residents134 and who have

been convicted of certain criminal offenses (including

“aggravated felonies,”135 which are not necessarily felonies

under criminal laws, and “crimes involving moral

turpitude”136) in administrative proceedings where they

can be deported without seeing a judge.137 In some cases,

these proceedings (known as “238b”) take place while

the individual is still serving their criminal sentence such

that he or she never enters immigration detention but is

deported directly from criminal custody.138 However, the

individual generally cannot be deported for 14 calendar

days after the date the 238b order was issued, “in order

that the alien has an opportunity to apply for judicial

review.”139 This temporary waiting period can be waived

by the non-citizen.140

Individuals in 238b proceedings must be given reasonable

notice of the charges and an opportunity to review the

charges and the evidence against them, and they may be

represented by a lawyer, at their own expense.141 A record

of the proceeding must be maintained for judicial review,

and the officer who adjudicates the order cannot be the

charging officer.142

If the individual’s conviction does not meet the aggravated

felony definition or if DHS does not have adequate proof

of the conviction, DHS must terminate proceedings but

can nonetheless initiate formal removal proceedings

in immigration court.143 Although the determination

that a conviction is an aggravated felony is often very

complicated, in 238b proceedings, it is a DHS officer—

who need not be a lawyer, let alone a judge—who makes

that determination.

The administrative removal statute does not require

0

3,500

7,000

10,500

2008 2009 2010 2011 2012 2013 2014

14,000

Number of 238b cases where the individual was granted relief

Number of 238b Cases

Between FY 2008 and FY 2013, ICE issued 67,275 administrative “238b” removal orders. In only

0.85 percent of those cases was relief from deportation granted. Very few individuals in 238b

proceedings are able to claim relief due in part to the substantive and procedural limitations

of those processes. Source: Department of Homeland Security, Immigration and Customs

Enforcement, Response to ACLU Freedom of Information Act Request, FOIA #14-11764,

available at www.aclu.org.

FIGURE 4

Administrative Removal (238b) Cases FY 2008–Present





more substantial rights that apply in immigration court.

Unlike a full immigration hearing, 238b proceedings

provide no opportunity for the individual to present

claims for relief or other equitable factors before a neutral

decision-maker, no meaningful opportunity to provide

evidence or question witnesses, and no verbatim recording

of the proceeding.152 These proceedings often take place

while the person is in criminal custody or immigration

detention and may appear more like an interrogation than

a judicial hearing. Critically, the presiding DHS officer,

unlike an immigration judge, is not required to inform

the non-citizen if he or she is eligible for relief (and,

indeed, may not know whether a person is eligible for any

relief). As these officers are not required to be lawyers,

they may fail to recognize that the person cannot actually

be placed in 238b proceedings, for example, because the

individual was not convicted of a crime that is considered

an aggravated felony. The determination that a person

has been convicted not just of a crime, but of a crime that

constitutes an aggravated felony or other designated offense

under immigration law (such as a crime involving moral

turpitude), generally requires significant legal analysis that

these officers are not qualified to undertake. Advocates

and federal public defenders interviewed for this report

observed that this legal analysis is highly complicated and

that untrained immigration officers, who are not legal

professionals, are likely to make mistakes. Indeed, U.S.

Supreme Court Justice Samuel Alito, concurring in Padilla

v. Kennedy (the U.S. Supreme Court case recognizing

the responsibility of criminal defense counsel to inform

defendants of possible immigration consequences from

a guilty plea), observed that even for lawyers untrained

processed through 238b are barred from receiving any

discretionary relief from deportation—for example,

the ability to adjust status or apply for cancellation of

removal—even if they would be eligible for these forms of

relief in immigration court.

In PracticeIndividuals who may not be deportable based on their

conviction and should not even be in these proceedings

may never be made aware of that fact because the only

person they speak with in 238b proceedings is likely to be

the charging officer. Once in 238b proceedings, even for

individuals who may be eligible for relief, the options for

relief are more restricted than they are in immigration

court. For example, a person who is afraid to return to their

country of origin might be eligible for non-discretionary

relief such as withholding of removal or relief under

CAT.147 They may also qualify for a U visa as a crime

victim.148 But in many cases, individuals are never made

aware of these opportunities. Although the 238b process

is not always as accelerated as that of expedited removal,

which can be effectuated within 24 hours, it nonetheless

takes place quickly, behind closed doors, and with little

opportunity for the non-citizen to get assistance. In some

cases, the proceeding takes place while the individual is still

in criminal custody completing their sentence; in those

cases in particular, it may be difficult to find immigration

resources or relevant legal orientation services that could

explain the various forms of relief from deportation and

claims they could make.

The procedural protections in a 238b proceeding are

limited to providing the non-citizen with a notice of intent

that states the basis for his or her “deportability” as an

aggravated felon; the right to counsel at the non-citizen’s

own expense; and the right to examine the government’s

evidence.149 The individual then has the chance to respond

in writing, within 10 days of receiving the notice, to dispute

the designation of their crime as an aggravated felony or

other designated offense.150 If the individual does choose to

appeal the removal order, he or she can file an appeal to the

relevant federal circuit court of appeals.151

These procedural protections are no substitute for the

The decision to place someone in a summary removal proceeding instead of a formal court hearing may be arbitrary—but also decisive.





officer conducting his 238b proceeding convinced him

that there was no point in appealing. Ricardo withdrew his

request for an appeal and was deported to Mexico, leaving

his parents and U.S. citizen fiancée in the United States.

He later returned to the United States and was prosecuted

for illegal reentry in a federal court, which agreed that his

earlier deportation violated due process and that he should

not have been deported for an aggravated felony.154

As in all these proceedings that bypass the courtroom,

individuals with disabilities are at a significant disadvantage

in defending their rights in the absence of both legal

assistance and any neutral arbiter to help identify their

rights and ensure the person is actually removable. Deolinda

Smith-Willmore, a partially blind U.S. citizen born in

New York who also had diabetes and schizophrenia, was

misidentified as a citizen of the Dominican Republic while

serving a sentence for assault and deported through 238b.

Ms. Smith-Willmore, who was 71 at the time, remained in a

nursing home in the Dominican Republic for four months

while her lawyer fought to have her returned.155

Although these summary removal orders for individuals

with aggravated felonies may appear to be an efficient

means of deporting those who fit within DHS’s stated

priorities, they sacrifice fairness and

accuracy, and their use incorrectly

presumes that all these individuals

are both deportable and ineligible for

relief.

in immigration law, “determining whether a particular

crime is an ‘aggravated felony’ or a ‘crime involving moral

turpitude [(CIMT)]’ is not an easy task.”153

Ricardo S., who came to the United States from Mexico

when he was eight months old, was incorrectly processed

through 238b based on a misdemeanor conviction for

conspiracy to commit burglary, his first offense, which

was not an aggravated felony and for which he spent

only two days in jail. Ricardo—who was 20 at the time,

without a lawyer, and in jail at the time of his interview

with ICE—nevertheless asked to see a judge and wanted

to appeal ICE’s decision to remove him. However, the ICE

Identifying an “aggravated felony” requires significant legal analysis that DHS officers are not qualified to undertake.

An Arizona National Guardsman watches over the U.S. border with Mexico at an observation post on December 7, 2010, in Nogales, Arizona.

John Moore/Getty





7. A statement that the alien will accept a written order

for his or her deportation, exclusion, or removal as a

final disposition of the proceedings; and

8. A waiver of appeal of the written order of deportation

or removal.159

Like anyone accepting pre-hearing voluntary departure

or receiving an expedited removal order, a non-citizen

who signs a stipulated order is not given the opportunity

to present claims for relief and defenses to deportation.

Rather, when the person “stipulates” or agrees to accept

deportation, they admit to the factual allegations against

them and that they are removable;160 the immigration

judge’s role is confined to determining whether the

individual’s decision to sign the order was made knowingly,

voluntarily, and intelligently.161

ICE describes stipulated orders as beneficial for both the

“interested aliens” and the government: “[A] stipulated

removal order helps ensure swift justice, reduces their time

in detention and expedites their return to their homeland.

Furthermore, stipulated removal orders are a good avenue

for judicial economy in that they create operational

efficiencies for both the immigration and criminal

courts.”162 Certainly, by circumventing a full hearing at

which a non-citizen has the opportunity to present claims

and defenses, stipulated orders may speed up deportation,

but the benefits to those individuals who are otherwise

eligible to see a judge are less obvious.

In PracticeWithout a hearing and the opportunity to actually

question the non-citizen, immigration judges are

not truly able to assess whether the decision to sign a

stipulated order—thereby waiving significant rights—was

a “knowing, intelligent, and voluntary” decision. While

several immigration judges refuse to sign stipulated orders

or require that the individual be brought before them first,

this is not required or standard practice.163 The absence of

a meaningful opportunity to check whether the individual

understands the consequences of a stipulated removal

is particularly problematic given the coercive detention

setting in which these deportation orders are explained

and signed. The overwhelming majority—96 percent—of

E. STIPULATED ORDERS OF REMOVAL

The StatuteA stipulated order of removal is another deportation order

that is entered without an immigration hearing but is

signed by an immigration judge.156 Unlike other orders in

this report, however, stipulated orders of removal can be

used against any non-citizens, including lawful permanent

residents as well as undocumented immigrants, and

are technically issued by immigration judges. However,

the only person who actually speaks to the individual is

generally a deportation officer from DHS. An immigration

judge must sign off on stipulated orders and may require

that the individual be brought into court before approving

the order, particularly where the stipulated order suggests

due process problems.157 However, federal regulations

appear to permit the immigration judge (IJ) to “enter such

an order without a hearing and in the absence of the parties

based on a review of the charging document, the written

stipulation, and supporting documents, if any,”158 and in

several cases, that has been the practice in the past.

The stipulation, which when signed by the judge becomes a

final order of removal, must include the following:

1. An admission that all factual allegations contained in

the charging document are true and correct as written;

2. A concession of deportability or inadmissibility as

charged;

3. A statement that the alien makes no application for

relief under the Act;

4. A designation of a country for deportation or removal

under section 241(b)(2)(A)(i) of the Act;

5. A concession to the introduction of the alien’s written

stipulation as an exhibit to the Record of Proceeding;

6. A statement that the alien understands the stipulated

request’s consequences and that the alien enters the

request voluntarily, knowingly, and intelligently;





for Immigration Review] was created as a safety measure to

ensure fairness.”171

Before 2003, stipulated orders were very rare; but in 2008,

more than 30,000 individuals were removed through

stipulated orders, and between 2004 and 2010, over 160,000

individuals were deported through stipulated orders of

removal.172 Although DHS has not made public the most

recent figures for stipulated orders, it appears that reliance

on those orders has declined since 2010: in FY 2012,

approximately 15,000 non-citizens were removed through

stipulated removals.173

Immigration attorneys and federal public defenders

consulted for this report anecdotally report that use of

these orders has dramatically declined, perhaps due to

public and agency awareness that these orders frequently

violate due process.174 Advocates also credited a 2010

decision from the Court of Appeals for the Ninth Circuit,

which found a stipulated order of removal violated due

process because the non-citizen, who did not speak English

and was not presented with forms in Spanish, could

not have validly waived his rights to an attorney and an

appeal.175 According to Judge Dana Leigh Marks, President

of the National Association of Immigration Judges, “The

case made judges think about the process for stipulated

orders of removal. There are just not enough safeguards.”176

Nonetheless, these orders are still legal, and as such they

may be the basis for a reinstated order of removal or

prosecution for illegal reentry.177

individuals who signed stipulated orders between 2004

and 2011 did not have a lawyer,164 and as in other summary

removal proceedings, might not understand that they

have a deportation order if they never saw a judge.165

Even immigration judges reviewing the orders appear

to understand that individuals who take these orders

have been coerced into signing rather than requesting a

stipulated order.166 ICE officers, who are generally the only

people presenting information about stipulated removal to

immigration detainees, have “routinely given misleading,

confusing, and downright inaccurate information to

detainees about the law.”167

Deportation Without Due Process, a 2011 report on

stipulated removals based on extensive government records

obtained through FOIA requests, demonstrated that in the

early/mid-2000s local ICE offices and some immigration

courts were “encouraged, and given incentives, to increase

the number of stipulated removals entered against

non-citizens in their jurisdictions.”168 The incentive

was explicit: to increase the number of removal orders.

Local ICE offices were given quotas, and immigration

judges, who often grapple with heavy caseloads, were

encouraged to utilize stipulated orders as a means to

increase the case completion and removal figures.169 The

released government records also suggested that these

orders might have been used against children and non-

citizens in psychiatric institutions.170 As one immigration

judge observed, “the major weakness I see is that we are

essentially handing over to ICE the duty of determining

whether an alien has relief available. . . . In reality, ICE has

very significant leverage over a pro se [unrepresented by

counsel] detained alien. I believe EOIR [Executive Office

“ICE has very significant leverage over a pro se detained alien. I believe EOIR was created as a safety measure to ensure fairness.”





in years or decades, separated from young U.S. citizen

children or other relatives they were supporting in the

United States, and deported without the chance to say

goodbye, without money or the opportunity to plan their

next steps, and now face years of separation from loved

ones. Young children arriving alone and fleeing violence or

trafficking have been quickly removed without any inquiry

into their situation or concern for what will happen to

them. And these are only the stories of people who survived

deportation to share their ordeal or eventually returned to

the United States and found help.

Immigration law is notoriously complex, and a system

that requires immigration enforcement officers to make

complicated legal determinations about an individual’s

rights within minutes or hours and without legal training

will inevitably allow the deportation of people with rights

to enter and remain in the United States. Indeed, we

know that it already has, and that U.S. citizens have been

deported through these summary processes. Not every

case is complicated, however; and in some cases, people

are unjustly deported not because of a misunderstanding

about the law but due to coercion, intimidation, and

misinformation from immigration officers whose focus

on accelerating and multiplying deportations comes at the

expense of basic fairness and people’s lives.

II. WHO IS GETTING DEPORTED WITHOUT A HEARING?

Or rather, who isn’t? The overwhelming majority—83

percent—of people deported from the United States

today never saw a judge, did not get a hearing, and never

had the chance to be heard. But that does not mean that 83

percent of the people deported had no rights to enter and

remain in the United States; rather, the summary removal

infrastructure rapidly and reflexively deported hundreds of

thousands of people, including people who are eligible for

relief from deportation or who were already in or entering

the United States lawfully.

In the 136 cases documented by the ACLU through

interviews and case file review, the majority were not simply

economic migrants coming to the United States for the first

time with no connection to the country. Those deported

(sometimes repeatedly) without a hearing include longtime

residents of the United States with U.S. citizen children,

asylum seekers escaping—and being returned to—violence,

and people who were lawfully in the United States on

visas or working with valid authorization. U.S. citizens

have been deported when misidentified as undocumented

individuals and quickly removed without the opportunity

to get assistance and prove their citizenship. Families are

torn apart when parents or their children are coerced into

signing a deportation order despite having claims to be in

the United States or when they are automatically expelled

at the border after a short trip abroad. Asylum seekers,

fleeing immediate persecution and often unable to procure

travel documents (not that they would necessarily help

them), arrive at the U.S. border seeking sanctuary but

instead find a detention cell, an expedited removal order,

and deportation back to danger.

Several individuals interviewed by the ACLU, including but

not limited to asylum seekers, were attacked, kidnapped,

raped, or robbed after their deportation from the United

States. Many were returned to countries they had not seen





States ratified both the Convention Against Torture and the

Convention Relating to the Status of Refugees (“Refugee

Convention”) and adopted them into domestic law, so

that both federal and international human rights law

prohibit the expulsion of asylum seekers to places where

they face persecution.181 The Refugee Convention further

provides that a non-citizen should not be penalized for

attempting to enter, without authorization, in order

to seek protection,182 and when expedited removal was

introduced, in recognition of the U.S. obligation to protect

asylum seekers, the statute included a carve-out for asylum

seekers who would be referred to an asylum officer to be

interviewed instead of deported if they claimed fear.

Of the 136 cases in this report (which include 11

unaccompanied children), 89 of the individuals

interviewed by the ACLU received a summary removal

order (expedited removal or reinstatement or voluntary

return in the case of unaccompanied minors) within the

broad U.S. border zone (i.e., at a port of entry or within

100 miles of the U.S. border).183 Of those individuals, 49

(55 percent) said they were never asked about their fear

A. ASYLUM SEEKERS RETURNED TO DANGER

“I think it ennobles us as a country, and it also

speaks volumes to the rest of the world, when we

open our country up to help those in the worst

of circumstances. … [O]ur Nation has a long and

noble tradition of being a country of refuge. We

are the world’s leader in the protection of refugees

and asylum seekers, and I am pleased that we are

and I want us to continue to be that.”

—Former Senator Samuel Brownback178

The United States has a long tradition of providing

protection to individuals fleeing persecution and violence.

Even contemporary critics of the U.S. asylum system

accept this narrative as a valuable American tradition to

be preserved.179 Under human rights law, every person has

the right to seek asylum from persecution.180 Moreover,

international law recognizes the obligation of receiving

countries not to return an asylum seeker to a place where

they are likely to be persecuted or tortured. The United

Spencer Platt/Getty

New York, NY. The Statue of Liberty has traditionally been a symbol of hope and freedom for individuals fleeing persecution and seeking sanctuary in the United States. Today, many asylum seekers are returned to danger before they have had the opportunity to ask for protection.

32 AMMMMEERICAN CIVIL LIBERTIES UNION




get review and a second chance. Rather, often they must

put themselves in danger and at risk of prosecution and

imprisonment by seeking to reenter the United States.

This danger is more than theoretical. While some of the

individuals interviewed by the ACLU did eventually return

and win withholding of removal or CAT (mandatory

relief that is more limited than asylum), often they first

had to experience additional violence in their home

country, followed by detention and, in some circumstances,

prosecution when they returned to the United States.

1. Expedited Removal and the Impediments for Asylum SeekersExpedited removal requires that DHS officers refer a non-

citizen who claims to be afraid of persecution in his or her

country of origin for an interview by an asylum officer.184

To ensure that individuals are aware of their right to seek

asylum, federal regulations require that interviewing

officers read the following script, in full, at the outset of

the interview, and state that interpreters shall be used if

necessary185:

Except as I will explain to you, you are not

entitled to a hearing or review. U.S. law

provides protection to certain persons who face

persecution, harm or torture upon return to

their home country. If you fear or have a concern

about being removed from the United States or

about being sent home, you should tell me so

during this interview because you may not have

another chance. You will have the opportunity

to speak privately and confidentially to another

officer about your fear or concern. That officer

will determine if you should remain in the United

States and not be removed because of that fear.186

This rights recital, significantly, says nothing about

the source of the fear—i.e., whether it comes from a

governmental or non-governmental actor—nor does it ask

DHS officers to screen for specific facts that would trigger

an asylum claim. What triggers a referral is intentionally

broad and was intended to ensure that asylum seekers

could claim and explain their fear to a trained asylum

officer with specialized knowledge of asylum law.187

of persecution, or that they were not asked anything in a

language they understood.

Only 25 (or 28 percent) said they were asked about fear

of returning to their country of origin by a border officer

or agent, and 10 of those individuals (40 percent) said

they told the officer they were afraid of returning to their

country but were nevertheless not referred to an asylum

officer. Of the 25 individuals who said they were asked

about fear, four said they had not been asked on other

attempts to come to the United States.

Only one of the 11 unaccompanied children (all Mexican)

interviewed by the ACLU was asked about fear of returning

to his country of origin, and all were quickly returned to

Mexico.

The remaining 15 individuals (17 percent of the 89

individuals) did not recall specifically being asked or not

asked; in the majority of these cases, their primary reason

for coming to the United States was not to seek protection

but because of family ties, claims to U.S. citizenship, to visit

friends or work on valid visas, or in search of economic

opportunities. Two individuals said they did tell border

officials, of their own initiative, of their fear of returning to

their countries. One was referred to an asylum officer; the

other was not.

There is no formal mechanism for an individual unjustly

denied a credible fear interview (CFI) and deported to

Fifty-five percent said they were not asked about fear or persecution of torture. Forty percent who were asked and said they were afraid were ordered deported without seeing an asylum officer.





2. Language and Information BarriersMost of the individuals interviewed by the ACLU stated

that they were given forms to sign in English, which most

did not speak or read, and often were not interviewed by

an immigration officer who fluently spoke their language

or through an interpreter. The asylum protections in

place can be activated only when a person is informed of

those rights, and the consequences if they waive them, in

a language they understand. Because many officers may

not speak languages other than English fluently, there is a

fundamental breakdown in their ability to communicate

with individuals about their rights and ask the critical

questions about fear of returning.

Yazan S., a 19-year-old Syrian with a congenital heart defect

and attention deficit hyperactivity disorder, speaks Arabic

and very little English. He came to the United States alone

in October 2013 after shelling devastated his neighborhood

in Damascus. Shortly after the conflict started, his family

says, Yazan—who is Christian—was stabbed on the street

by Islamic extremists, severing his pacemaker; he came to

the United States to seek both medical care and protection

from the violence. En route to his uncle in California,

Yazan transferred through Detroit, where CBP officers

interrogated him for hours and detained him at a local

police department overnight. Although Yazan’s uncle

Manaf hired a lawyer, DHS officials refused to let either the

attorney or Manaf speak with Yazan. A CBP officer did call

Manaf to confirm Yazan’s identity: “I repeatedly asked to

speak to my nephew. Finally the agent just hung up on me.

I called back [and] I told them, this guy has been through

a lot of trauma. . . . The officer said to me, ‘You guys come

here and take advantage of our system.’” Yazan told his

uncle that six officers were standing around him, telling

him to sign a form and that they would not provide him

with an interpreter or the chance to call his uncle until he

signed. In his limited English, Yazan tried to tell officers

that he was afraid to return to Syria but was nevertheless

deported through expedited removal.190

Hilda, a 35-year-old from Honduras, fled death threats

from gangs and domestic violence perpetrated by her

husband. In 2013, after a severe beating, Hilda miscarried

the twins she was pregnant with and fled to the United

States, still bleeding daily. “We never want to return,” says

It is essential that this language is read to all arriving

immigrants because most asylum seekers arriving in

the United States are unlikely to have a sophisticated

or even rudimentary understanding of U.S. asylum law

and procedures, and may not even know they exist. As

attorney Kaveena Singh observes, “A lot of our clients

don’t know they are eligible for asylum when they arrive;

they are just trying to escape danger. Some—probably the

most deserving—are so traumatized they are reluctant

to share their stories, even with us. They aren’t getting an

orientation at the border about their rights.”188

Asylum seekers are dependent upon the border officials

who arrest, detain, and interrogate them to also explain

their rights and refer them to an asylum officer. In many

cases documented by the ACLU and others, border officers

are not providing necessary information in the language

spoken by the asylum seeker—if at all—and sometimes fail

to refer individuals for a CFI even when those individuals

are able to articulate a fear of returning to danger.189 For

asylum seekers who may be traumatized from the harm

they fled, their dangerous journey, and finally, arrival into a

detention center, claiming and adequately communicating

that fear of being removed may be extremely challenging.

But it is not only reticence or post-traumatic stress

that prevents individuals who risked their lives to seek

protection from asking for asylum: systemic failures and, in

some instances, abuse and coercion by the screening border

officer prevent some asylum seekers from ever requesting

assistance when they reach the United States.

Yazan S., a 19-year-old from Syria with a congenital heart defect, tried to request asylum but was deported at the airport instead.

Spencer Platt/Getty Images





Hilda and both her children were

given expedited removal orders, and

Hilda says they were never asked about

fear of returning to Honduras.192

Ana N. R., a 47-year-old from El

Salvador with two U.S. citizen kids,

had gone back to El Salvador to see

family when a gang burned down

her family’s beauty salon and raped

an employee. Her children were

going to petition for her to join them

in the United States, but given the

danger, she could not wait. Arriving

in McAllen, Texas, in March 2014,

Ana said the officers asked about her

fear of being returned but said if she

claimed fear, she would be detained

for a year:

I said I would prefer one year

in jail alive to death. They wanted me to sign

papers after I told them about my fear. But I

wouldn’t sign. The officer said “Sign or I’m going

to sign for you.” They slammed the door in my

face because I wouldn’t sign. The papers were

in English. I asked what they were for and said I

would sign if they were in Spanish. I saw people

saying no, they wouldn’t sign, and the officers just

signed for them. They called us pigs and said we

smelled like fish. There were 10 kids lying on the

floor. They would insult us all the time. I thought,

maybe this isn’t the U.S. Maybe this is Cuba. After

all the years I spent in the U.S., I had such a good

impression of it. I was really shocked.193

Carlos C. Z., an asylum seeker from El Salvador, was moved

from hielera (“icebox,” a term commonly used to refer to

CBP holding cells) to hielera when he first arrived in the

United States. He came to the United States fleeing violence

from the Mara Salvatrucha gang (“MS-13”), which left

him with scarring and deformed fingers. Although he told

a Spanish-speaking officer by phone at the first holding

facility that he was afraid to go back to El Salvador, Carlos

says that another officer who spoke very little Spanish then

came into the room and gave him forms to sign. Carlos does

Hilda. “All you’re going to find in Honduras is death.” She

took her two-year-old and 14-year-old children with her,

arriving in Texas in November 2013. “I was caught crossing

the river,” recalls Hilda:

It was 8 p.m. at night. They took me and my kids

to a cell. . . . They started to ask us to sign a lot

of papers. The problem was I didn’t understand

anything he was asking me. Since he saw that I

didn’t understand, [the officer] would just write

and write and just tell me, “Sign.” … He would

just put [the form] in front of me and say “Sign,

next one, sign.” . . . I was bleeding when I arrived.

I was afraid [to ask for help]. Everyone there was

afraid. [The officers] don’t let you even talk to

them. . . . The fear they instill in you doesn’t let

you ask for help. . . . I needed help and it just felt

horrible to be rejected like that.191

A woman and her child walk past gang graffiti in a neighborhood with heavy gang violence on July 20, 2012, in Tegucigalpa, Honduras. Honduras now has the highest per capita murder rate in the world and its capital city, Tegucigalpa, is plagued by violence, poverty, homelessness, and sexual assaults.

“All you’re going to find in Honduras is death.”

Spencer Platt/Getty





For individuals who do not know about the asylum

process, it may not occur to them to raise their fear if they

are never asked. Ponchita, a 33-year-old woman from

Mexico, said she was not asked and did not mention the

domestic violence she was fleeing because “in Mexico we

are just used to no one asking about it.”199

Many asylum seekers interviewed for this report said they

were unaware of the existence of asylum; generally, the only

individuals who were aware of the right to apply for asylum

were persons who, after receiving an expedited removal

order from CBP, were taken to an ICE facility to await a

plane to take them back to their country of origin. While in

detention, they learned for the first time from ICE officers,

legal services organizations, and sometimes other detainees

about the existence of the asylum process.

Many individuals told the ACLU that the only information

CBP officers gave them was that they would be detained a

long time—and probably deported anyway—unless they

immediately signed a removal order. Moreover, many said

the environment in which they were detained suggested

that they had no rights.

Few people recalled CBP ever telling them of the existence

of asylum, but several were given misinformation by CBP

officials. Nydia R., a transgender woman from Mexico,

said she told border officials that she had been attacked

in Mexico and wanted help, but she was not referred for a

CFI; she later successfully entered the United States without

being apprehended, applied for and was granted asylum.

“I didn’t know the immigration agents could have helped

me,” Nydia said, recalling her previous attempts to enter the

United States. “They had known all the reasons I was trying

to come back to the U.S. and even knowing them, they sent

me back.”200

Cesar, who had been in the United States for 14 years when

he was arrested by CBP, says he was not asked anything

about his fear of returning to Mexico: “They didn’t ask me

anything. They were just mocking me. They asked why

would I come into their land. I was trying to explain that

there is a lot of violence in Mexico, and I don’t want to die.

. . . I asked to call my family, my sister or my wife, but they

said they only give Central Americans, the elderly and kids

that privilege.” Cesar was deported to Reynosa, where he

not read or speak English and refused to sign the forms.194

At that point, as detailed in Carlos’s declaration, the officer

became angry and “slapped [Carlos] across the face with the

forms. At that point, [Carlos] asked to speak to a judge, to

which he recalls the officer replied, ‘Here, I’m the judge, the

attorney, and the one who is going to deport you.’ A different

officer then wrote on every page of the forms that [Carlos]

refused to sign. [Carlos] did not learn what the form stated

until another immigrant translated it for him at a different

detention facility in Pennsylvania weeks later.”195

At seven years old, Karen R. L., now a 21-year-old from El

Salvador, was coerced into joining the gang that murdered

her mother; the gang members, Karen said, “told me I had

to finish paying the accounts of my mom.”196 When she

tried to leave the gang, she says, she was sexually assaulted

by gang members and threatened with death. Arriving in

South Texas, Karen recalls, the officers initially gave her

forms to sign in English: “I started asking what they were

but [the officers] just said, ‘Sign here, sign here,’ really

loudly. When I found out what I was signing, I said, ‘But

I’m afraid and I can’t go back to my country.’”198 Karen was

finally given a CFI, which she passed.

Hieleras—“Ice Boxes”In many cases, individuals are afraid to talk to CBP

officers because of the conditions in which they are

held. An investigation by Americans for Immigrant

Justice found that individuals apprehended by CBP

were held for up to 13 days in freezing cells with no

blankets, little food, no showers, no privacy for using

the restroom, and little space.197 Almost everyone

interviewed by the ACLU described inhumane

detention conditions while in CBP custody, citing

verbal abuse, freezing conditions, inadequate food, lack

of adequate medical care, and overcrowding. For some

individuals fleeing violence, the experience of being

detained and in inhumane conditions is traumatizing,

and as a result, some individuals with strong asylum

claims nevertheless decide to abandon them and accept

deportation rather than remain in detention.





the United States, was issued an expedited removal order

when she arrived at the U.S. border after being attacked

and raped by a gang; the gang had also tried to cut out

her breast implants, and the wounds were fresh when she

explained her story to CBP. CBP nevertheless deported

her. Nydia returned, and although DHS records available

to and in fact procured by the officers showed she had

asylum status, DHS officers reinstated her removal order

and deported her once again. In Mexico, she was raped,

kidnapped by Los Zetas, and repeatedly attacked by gangs

and other men because of her transgender status until she

could return, without inspection, to the United States.205

Roberto Lopez-Gutierrez, a Mexican national, was

kidnapped in Mexico and held for ransom in caves on the

U.S.-Mexico border; when he escaped, he was arrested by

CBP and referred for illegal entry prosecution. Although

the CBP agent did ask if he was afraid of returning to

Mexico and he said yes, the agent wrote that he said no,

explaining in subsequent testimony that she wrote he

had no fear because “he was afraid of kidnappers, not of

government persecution.”206 The agent later admitted in

court testimony that she was not trained in asylum law

and that the regulation was silent on whether the violence

needed to come from the government for a person to

still has some family: “I didn’t last long because there were a lot of shootings.”201

Felipe R., a 32-year-old Mexican, left the United States and his two U.S. citizen children to attend his father’s funeral in Michoacán, Mexico, where he was kidnapped and held for ransom. He escaped and was caught by border officers when he attempted to reenter the United States in Laredo, Texas. Although he told the officers what had happened, Felipe said, “Border Patrol said I didn’t have the right to claim asylum because the U.S. doesn’t give asylum to Mexicans.” He has tried multiple times to return to his children but says he has never been asked about fear of returning to Mexico.202

3. Failure to Refer Asylum Seekers to an Asylum OfficerWhile the majority of individuals interviewed by the ACLU said they were never asked about their fear of being deported, some did attempt to tell border officials that they were in danger and needed assistance, but they were still not referred to an asylum officer.

The regulation requiring border officers to refer a person to an asylum officer if they fear persecution or torture if returned to their country says nothing about the identity of the perpetrator; however, our interviews and a recently leaked UNHCR report indicate some border officers incorrectly think that violence from non-state actors, such as gangs or a family member, can never be the basis of an asylum claim and refuse to refer these asylum seekers for an interview.203 In fact, if a government is unable or unwilling to protect an individual who otherwise satisfies the eligibility requirements for asylum, a perpetrator’s non-state identity does not foreclose asylum.204

Nydia R., a transgender woman who

had already been granted asylum in

After being attacked by a gang in Mexico, Nydia returned to the United States, where she had asylum status. Immigration officers ordered her deported.





detention facility in Taylor, Texas, Bessy says she felt she

had made a mistake.213

Lucila O. fled domestic violence in Nicaragua and was

arrested by Border Patrol agents in Texas: “I told them I

was afraid. . . . [The agent] just told me, ‘You are getting

deported. . . . Even if you are afraid you are going to get

deported.”214 Ericka E. F., a 33-year-old woman from

Honduras, fled gang violence and sexual and physical

violence from her partner and was arrested in Texas: “I

crossed in Laredo and I told them I needed asylum. I

needed to stay here to protect myself. . . . I told him I was

fleeing for protection because of the violence. They said

women always come here with lies. I told them it was true.

[The officer] just laughed and laughed.”215

Braulia A., a Guatemalan national and mother of four U.S.

citizen children, was arrested by CBP officers at San Ysidro

after she briefly left the United States. She told officers that

she was afraid to be deported to Guatemala, where her

father had been murdered and her mother was the target

of extortion by gangs. According to Braulia, “The officers

said, ‘We don’t care if you are killed there. Don’t even think

about coming back or we will put you in jail for a long time.’

They just said, ‘You don’t have a right to anything, you are

a criminal, you are worthless.’” Although Braulia told them

she was illiterate, they forced her to initial that she had read

the interview, which incorrectly stated that Braulia did not

claim fear. She refused to sign the expedited removal order

but was deported to Guatemala, where she was subsequently

raped and shot by a gang; her son, who joined her in

Guatemala, was murdered by the same gang.216

The experience of being interrogated can be intimidating,

be referred for an asylum interview;207 nevertheless, she

excluded all of Mr. Lopez-Gutierrez’s statements about the

kidnapping from his sworn statement.208

Similarly, Telma M. did explain her fear of being deported,

which was recorded by CBP officers in her sworn

statement, but the question she recalls being asked was,

“Are you afraid of your government?” to which she says

she responded, “No, not the government, but I am afraid

of my husband back in El Salvador.”209 Although she may

be eligible for asylum based on domestic violence,210 Telma

was issued an expedited removal order and transferred

from Texas to the Broward Transitional Center in Florida to

be deported.

In other circumstances, CBP officers simply reject

individuals’ statements regarding fear, perhaps because

they do not believe the individuals, but CBP officers are

not trained to determine credibility or to assess whether a

specific experience meets international protection standards.

Juan Manuel C., from El Salvador, says he told CBP officers

he was afraid to return to El Salvador, where he had been

a victim of gang extortion, but they did not refer him for a

CFI: “They didn’t care; they said it was my country, I had

to go.” Instead, they told him he had to sign an expedited

removal order even though he wanted to see a judge: “I

didn’t want to sign. But then they told me I would be in

jail from 18 months to 5 years.” After his deportation to El

Salvador, gangs began to demand money from him: “The

Mara Salvatrucha were charging me $500 a month; they

took $7,000. They send you three notes and on the third

time they kill you or your family. People have been killed

right in front of my house.”211

Bessy M., a 34-year-old woman from Honduras, came

to the United States after her husband was murdered by

her brother-in-law. She tried repeatedly to tell the border

officers she was afraid to return to Honduras, but she was

issued an expedited removal order. By the time she was

transferred to Port Isabel, a detention center in South

Texas, Bessy said, she retracted her statements, even though

she was finally referred for a CFI: “I said I wasn’t afraid

because I was scared of saying yes. Everyone said I would be

in jail for a long time.”212 But while waiting for deportation

at the T. Don Hutto Residential Center, an immigration

“The officer filled out a form and asked me to sign, but I refused. … They grabbed my fingers and pushed them on the paper.”





by Border Patrol agents. Although all three were caught

the same day and came with the same claim, they had very

different experiences. Maria was the only one asked about

her fear of being deported and referred for a credible fear

interview: “I said yes [I was afraid], and he was just writing.

He asked me to sign if I wanted to sign. I said no. The

form was in English but I think it was to throw me back to

El Salvador.”221 Her sisters had very different experiences.

Marian recalls, “They did not ask me any questions. They

just took my ID. The officer filled out a form and asked me

to sign, but I refused. He was very angry because I wouldn’t

sign. He stood up, pulled me up, and they grabbed my

fingers and pushed them on the paper.”222 Rosemarie spoke

with a Border Patrol agent who spoke Spanish, and she

tried to ask for help, but when she explained why she was

afraid, she was told “those are old stories”:

They didn’t ask me any questions, just my name

and where I was from. I said to the official, “What

are the possibilities for us to stay if we hire an

attorney because I was afraid of going back.” He

said that’s what everyone says and there is no

possibility for us because there are already too

many people inside the U.S. He said they don’t

and the environment in which these interviews are

conducted suggests to the asylum seeker that he or she has

no rights. In its recent report, Human Rights First observed

that CBP interviews with asylum seekers were sometimes

conducted in crowded and loud rooms with no privacy.217

Wendy, a 26-year-old woman from Honduras who had

lived in the United States for almost a decade, recalled,

“There were a lot of officers in a big line with all the officers

around you. They did ask about fear but when I said yes,

they said, ‘You all say the same thing. I don’t know why you

guys say you are afraid. That is your country. This is not

your home.’”218

Rosa, a 22-year-old woman, fled domestic violence in El

Salvador and was arrested by border officials when crossing

into Texas. Although she was asked about fear, she was

never referred to an asylum officer:

ICE said I had no reason to complain because I

was already being deported. I was asked to sign

forms my first day. I found out later it was my

deportation order. The form was in English. … At

that time, they didn’t give us the opportunity to

ask any questions.219

After her deportation, Rosa’s ex-boyfriend found her, and

the harassment and abuse continued. She returned to the

United States and says she was not asked about fear when

she was caught by CBP again in South Texas. “They just gave

me some forms to sign, but I refused.”220 She was eventually

allowed to get a credible fear interview, which she passed.

Too often, whether an asylum seeker is given a credible

fear interview or, instead, deported with an expedited

removal order is a matter of chance that depends on the

particular officer. Because expedited removal orders are

often issued quickly, with limited internal review and with

little supporting evidence required, an asylum seeker can

be erroneously deported without any opportunity—in the

moment or later on—to challenge this deportation order.

Maria, Marian, and Rosemarie, three sisters from El

Salvador, fled extortion and threats by gangs in El Salvador

and came to the United States to join their brother (who

has Temporary Protected Status) in May 2013. After

crossing the Rio Grande into Texas, the sisters were caught

Maria, Marian, Rosemarie, and their brother.





would be deported.226 Through advocacy with DHS, his

attorney, Jacqueline Bradley Chacon, was finally able to get

him referred for a credible fear interview, which he passed.

Had he been deported to Honduras, Ms. Bradley Chacon

says, “He [would] be killed, I have no doubt.”227

4. Asylum Seekers with Prior Removal OrdersFor asylum seekers whom the system fails, and who receive

an expedited removal order instead of a credible fear

interview, the consequences are immense: these individuals

can be deported to danger,228 and if they try again to get

protection in the United States, they can be prosecuted for

illegal reentry and placed in reinstatement proceedings.

Several of the individuals interviewed by the ACLU

experienced all three.

For individuals who are able to eventually get before

an immigration judge, the impact of the prior removal

order and CBP’s written recording that they had no fear

continues to have consequences. Although the concern

over border officials not asking about fear or misrecording

the answer is not new and was documented in the

2005 USCIRF report, some judges and asylum officers

nevertheless assume that these officers are asking the

required questions in a way the asylum seeker understands.

As one attorney noted, when an asylum seeker’s sworn

statement records that he or she has no fear, it can be used

against him or her in court: “In one such case, I had a client

with a strong gender-based claim for relief. Both the DHS

give permits anymore—they used to but no

longer… I asked to make a call to my brother

because I was afraid of going back and he said no

because we were going to be deported. . . . They

said if I didn’t sign [the expedited removal order]

they would grab me and make me sign. I just put

one fingerprint down then.223

Even Maria was not told at first that she would be allowed

to seek asylum, so all three spent days in detention, sleeping

on the floor in a crowded cell and certain they would

be deported. Ultimately, Maria was issued a Notice to

Appear and released on an order of supervision to report

to ICE near her brothers’ home in Florida. Maria has

since won her immigration case before a judge. Marian

and Rosemarie were also given orders of supervision

and allowed to join their brother. However, Marian and

Rosemarie currently have no way of affirmatively applying

for asylum, as they were issued deportation orders and not

referred for an asylum interview. For now, they are hoping

they will not be deported back to danger and can stay

together. If deported back to El Salvador, Rosemarie said,

they would be in even more danger than when they left and

would try to return to safety in the United States: “Since

they made us pay that ‘rent,’ if we were to go back, we

would have a bill. Since we left, they don’t like it. Whoever

doesn’t pay, they kill them. We know people who’ve been

killed. One girl said [to the police] that the gangs were

threatening her, and 10 minutes after telling the police she

was dead.”224

Milton, a government electrician in Honduras, came to the

United States after gang members repeatedly threatened

to kill him and his family in revenge for a motor accident

he was in that left the other individual, who was associated

with the gang, disabled. Although he moved repeatedly

within Honduras, nevertheless the gang repeatedly found

him. Milton was not referred for a CFI by border officials

but was issued an expedited removal order and released

into the United States on an order of supervision; his

attorney believes this is because he was with his young

daughter.225 When he checked in with ICE, he once again

expressed his fear of returning to Honduras; the ICE

officer, instead of referring him to an asylum officer,

incorrectly told him that it was his responsibility to get

proof that he had had a credible fear interview or else he

Reynosa, Mexico, April 2014. A migrant shelter providing services primarily to Central American migrants heading toward or being deported from the United States. Migrants and recent deportees are targets for kidnapping and theft by local drug cartels and gangs.





Moreover, immigrants seeking protection while in

reinstatement proceedings (i.e., because they have a prior

removal order) are likely to be detained for a long period

of time. For years, advocates have been concerned about

the delays immigrants face in getting an interview with an

asylum officer and then getting their decision, and in April

2014, the ACLU and partners filed a lawsuit challenging the

extensive delays in receiving a “reasonable fear” interview,

delays resulting in many months of detention for asylum

seekers with a prior removal order or a particular criminal

conviction.232 Under federal regulations, individuals with

a “reasonable fear” of persecution or torture must be

referred to an asylum officer to be interviewed and receive

a decision within 10 days.233 In fact, however, individuals

subject to reinstatement awaiting a reasonable fear

interview will wait in detention an average of 111 days.234

Alejandro first came to the United States in 1995, when he

was a teenager, fleeing gang violence in El Salvador. He was

twice summarily deported without the chance to apply for

asylum. Once back in El Salvador, he says he was threatened

by gang members constantly, despite moving to different

locations. Finally, the threats to his wife and daughter

became too much: “They said, ‘We are going to hit you

where it hurts and take what you value.’”235 The family fled

and settled in New Jersey. Eight years later, he was arrested

by police when having an argument with his wife; ICE

arrived and picked him up from jail. While in immigration

detention, Alejandro asked to see a judge: “The officer

tried to force me to sign a deportation order but because I

understood English, I refused to sign it. When I refused to

sign it, the officer tried to force me to put my fingerprint.

He said, ‘You have no chance, you’re getting deported.’”236

Fortunately, he was referred to an asylum officer prior

to being deported, but he then spent four months in

detention before he was able to see a judge and be released

on bond; his case is ongoing.237

Luis B. R., a 28-year-old gay man from Guatemala,

experienced sexual and physical violence throughout his

childhood, including from a police officer, because of his

sexual orientation. He eventually fled to the United States

but was arrested, detained for three months, and given

some papers to sign (which appear to be an expedited

removal order) before being deported back to Guatemala;

he does not recall ever being asked about his fear of

trial attorney and the immigration judge raised insistent

concerns over my client’s credibility, largely based on her

alleged statements in her border interview that she was not

afraid of returning to her home country. She stated that

she had never been asked by authorities if she had a fear of

return. These comments seemed to have been added into

her file without her knowledge or consent, yet they plagued

her for the rest of her case.”229

Before winning relief under the Convention Against

Torture, Braulia A. struggled to explain to the judge why

she would sign a statement claiming she had no fear if

that was incorrect, and the court was resistant to finding

that the Border Patrol agent had lied. Eventually, given

the weight of the evidence that Braulia had experienced

extreme violence in Guatemala, the judge found in her

favor without opining on whether she or the border

official was more credible. Similarly, Ana D. eventually

got an interview with an asylum officer while waiting for

her removal—after CBP had already issued an expedited

removal order and written that she had no fear. The asylum

officer questioned her as to why CBP would say that:

Q: “Did you ever tell an immigration officer

anything different?”

A: “I told him the same thing I am telling you now.”

Q: “Why did you think he wrote that you had no

fear?”

A: “I don’t know.”230

At a substantive level, the same benefits and protections

are simply not available for an asylum seeker with a prior

deportation order who has been removed. This is true

even if the only reason they have a deportation order

is the failure of CBP to inquire into fear or to refer an

individual who claims fear for an asylum interview. As

acknowledged by the Asylum Office of USCIS, the standard

for “reasonable fear” is higher than the standard of proof

required to establish a “credible fear” of persecution,231

so individuals who might have met the lower threshold

showing in a credible fear interview may have more

difficulty passing a reasonable fear interview—even when

the facts (on which the claim is based) are identical.





because Hermalinda’s mother was ill. Thinking the

security situation had improved, Hermalinda decided

to stay in Guatemala, and she and her husband had a

second daughter. Hermalinda and her husband were both

politically active in the opposition party and, in particular,

in challenging mining companies’ extraction activities.

Their activism put them in danger, however. Hermalinda

recalls, “On the 5th of March, 2011, about four men came

to our house and beat us. Two were police officers and two

were dressed in civilian clothes. They beat us and took us

30 minutes by car. Then they made us get out of the car

and they beat us more. They took off my clothes and they

raped me.”241 Hermalinda and her husband again fled to

the United States, but were caught by Border Patrol at

San Ysidro. The officers did not ask if she was afraid of

returning to Guatemala: “They didn’t give me any papers

[to sign]. They just put my finger down like this,” said

Hermalinda, motioning to show her thumb being pushed

on a table.242 Hermalinda did not know that the papers

were an expedited removal order; she found out what they

were years later, when she applied for asylum in the United

States and went to her interview, where she was met by ICE.

Fortunately, she was not detained, but because she is in

reinstatement proceedings, even if she wins her case when

the time comes (her hearing is set for 2017), she will not be

able to bring her daughters to the United States.

* * *

The failure to refer asylum seekers for an interview during

which they can explain their fears is not new. Even before

expedited removal was expanded geographically, the U.S.

government was aware that the expedited removal process

was resulting in the deportation of asylum seekers before

they had the opportunity to be heard and seek protection.

In 2004, Congress commissioned the United States

Commission on International Religious Freedom

(USCIRF) to conduct a study on asylum seekers in

expedited removal.243 The study, which included first-hand

monitoring of CBP interviews at ports of entry, evaluated

whether asylum seekers at ports of entry were in fact able

to claim the protections intended for asylum seekers. The

report found “serious implementing flaws which place

asylum seekers at risk of being returned from the U.S. to

countries where they may face persecution.”244

returning to Guatemala. After his deportation, the fear,

threats, and attacks continued, so he returned to the United

States and was able to enter without inspection. A few years

later, however, after being assaulted by his then-boyfriend,

Luis was arrested by the police, even though he was not

the perpetrator. The police then turned Luis over to ICE.

Luis then spent six months in detention before eventually

winning his case with the assistance of pro bono counsel.

Finally, a person who wins withholding of removal or CAT

relief will not receive the same benefits as a person who

wins asylum, such as the right to petition to bring his or her

family to the United States, to travel internationally, and to

eventually become a lawful permanent resident and a U.S.

citizen.238 Moreover, that individual may still be removed

to a third country, even if he or she cannot be deported to

his or her country of origin.239 For asylum seekers who are

in reinstatement only because U.S. immigration officers

incorrectly deported them when they first sought refuge,

this distinction feels particularly undeserved and punitive.

But for all asylum seekers, the distinction between who can

and cannot access the full range of protections and benefits

of asylum is not supported by international or domestic

law. While advocates are challenging this unjustified and

damaging distinction, for most people who can currently

only access safeguards through reinstatement proceedings,

many critical protections are foreclosed.240

Hermalinda L. and her husband, both indigenous

Guatemalans, fled political violence and sought protection

in the United States in 2006, leaving their daughter with

family. They were able to enter the United States without

inspection, but in 2008, they returned to Guatemala

The distinction between who can and cannot access the full range of protections and benefits of asylum is not supported by international or domestic law.





and for its failure to ensure the recommendations were

implemented before expedited removal was expanded.248

Almost a decade later, none of these systemic failures have

been corrected, nor have USCIRF’s recommendations been

adopted. Indeed, it is likely that problems with the process

have only increased with the expansion of expedited

removal across the entire border, as today even more people

are arrested, detained, interviewed, and removed through

this process without the opportunity for independent

review. Non-governmental organizations continue to

document problems with the credible fear process,

including failure by border officers to ask about fear and

refer individuals to credible fear interviews.249 And yet, in

2013 and 2014, congressional hearings—in their titles if not

in the testimony—have suggested that the asylum process is

too lax and ripe for manipulation by non-citizens.250

The allegation that this system is easily manipulated is

not supported by fact, and indeed, agency officials are

confident that their tools for detecting fraud are effective.251

As a recent Human Rights First report detailed at length,

there are already numerous investigative and prosecutorial

resources that can be used to punish and deter fraud in

the asylum system,252 and CBP and ICE officers are not

concerned that their existing tools are insufficient or could

be manipulated.253 Moreover, any individual who is found

to have made a fraudulent claim for asylum is not only

barred from receiving asylum but can also be prosecuted

and imprisoned and is permanently barred from receiving

any immigration relief in the future.254

Finally, even if some individuals may be fraudulently or just

incorrectly applying for asylum, it does not appear that the

majority of people attempting to enter the United States

are trying to manipulate the asylum system. The actual

number of individuals referred for a CFI at the border

remains relatively small, with estimates that between 5

and 15 percent of individuals subject to expedited removal

in FY 2013 expressed a fear of return and were placed in

the credible fear screening process.255 The journey to the

United States is fraught with incredible dangers;256 given

how well-known these dangers are, it is not a journey

someone would undertake lightly.

In particular, the study found the following:

1. In 50 percent of expedited removal interviews observed

by USCIRF researchers, arriving non-citizens were not

informed they could ask for protection if they feared

being returned to their home country;

2. In 72 percent of cases observed, individuals signed the

sworn statement drafted by the immigration officer,

which they were supposed to review and correct,

without being given any opportunity to review it;

3. These sworn statements were not verbatim

and sometimes included incorrect or made-up

information; and,

4. In 15 percent of observed interviews, a person who

expressed a fear of returning was nonetheless deported

without a referral to an asylum officer; in 50 percent of

those interviews, the files even stated that the person had

claimed fear and yet the referral did not take place.245

Notably, these are findings based on interviews between

immigration officers and non-citizens that took place in

the physical presence of a USCIRF researcher, with the

full knowledge of the interviewing immigration officer.

And yet, this monitoring was not sufficient to ensure

that immigration officers followed the regulations. In

2007, USCIRF issued a report card on DHS’s progress in

addressing the failures identified by the report, noting that

[T]wo years later, most of the Study’s

recommendations have not been implemented.

The Commission’s overarching recommendation

was that Expedited Removal not be expanded

until the serious problems identified by

the Study—which place vulnerable asylum

seekers at risk—were resolved. Despite this

recommendation, and the failure to resolve the

problems cited in the study, DHS has in fact

expanded Expedited Removal from a port-of-

entry program to one that covers the entire land

and sea border of the United States.246

The Commission gave CBP a score of “F” for its failure to apply the study’s recommendations on protections for asylum seekers to ensure procedures were followed247





work or study visas, lawful permanent residence, or other

nonimmigrant visas have been deported without a hearing,

sometimes in a matter of minutes, resulting in separation

from family, unemployment, and significant difficulties in

ever returning.

1. U.S. Citizens Deported Through Summary Procedures

“To deport one who so claims to be a citizen

obviously deprives him of liberty ... [and may]

result also in loss of both property and life, or

of all that makes life worth living. Against the

danger of such deprivation without the sanction

afforded by judicial proceedings, the Fifth

Amendment affords protection in its guarantee of

due process of law.”

—Justice Louis D. Brandeis,

Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

Given the intimidating and militarized environment

at ports of entry and along the border, combined with

the apparent lack of training for CBP officers and the

complexity of immigration law, it is inevitable that people

who have status, including U.S. citizens, will be illegally

deported by border officers and agents. Attorney Jaime

Díez, who practices immigration law in Brownsville, Texas,

says he routinely sees individuals who are U.S. citizens,

or eligible for U.S. citizenship, who are deported by CBP.

Some officers, he observes, “have stereotypes of who a U.S.

citizen is. They assume people who don’t speak English

can’t be a U.S. citizen. These officers don’t understand the

B. PEOPLE LAWFULLY IN THE UNITED STATES WHO ARE DEPORTED WITHOUT A HEARINGSummary removal procedures are not supposed to apply

to people with the right to be in the United States—for

example, U.S. citizens, lawful permanent residents (LPRs),

or individuals with asylum status. Despite the expansion

of these processes geographically and numerically, the

U.S. government maintains that these processes are meant

to speed the deportations of people who are unlawfully

entering the United States. For example, Congressional

and Administration statements in support of deportations

without a hearing (as well as the new “expedited hearings”

taking place along the southern U.S. border) take for

granted that they are applied to newcomers who are

unlawfully entering the United States and have no right to

enter or remain here.257 However, due to coercion at the

border, the absence of rigorous screening, and, in some

cases, governmental misconduct, individuals lawfully

residing in the United States have been deported without

seeing a judge or even the chance to call an attorney. As

a result of these rapid and hazardous processes, several

U.S. citizens have been deported and able to return to the

United States only after advocacy and legal representation.

A U.S. citizen, LPR, or asylee may at least seek judicial

review of his or her deportation, although sometimes with

considerable expense and difficulty, and perhaps have only

a period of banishment from the United States. That U.S.

citizens can be—and have been—deported from the United

States by an immigration officer should not be surprising:

while some U.S. citizens have been deported despite

having verifiable evidence of their status, other citizenship

cases involve complicated legal analysis and factual

investigation. Summary removal procedures like expedited

removal are not equipped for this intensive analysis, and

given their speed, the absence of legal assistance, and the

relative secrecy of these proceedings, are likely to result

in erroneous deportations. But U.S. citizens are not the

only individuals who can lawfully work and live in the

United States and who have been erroneously subjected

to summary removal proceedings. People with valid

Some people are automatically U.S. citizens even when they were not born in the United States. As of 2010, around 2.5 million U.S. citizens were born abroad.





observes that in both these cases, citizenship is conferred

to the child upon birth “by operation of law, even if the

individual is unaware of their U.S. citizenship status or lacks documentary proof of it.”263 For these individuals, proving their citizenship when stopped by immigration enforcement officers can be very challenging both in the absence of documentary evidence on hand and also because law enforcement officers may not be trained on the various ways in which a person can be a U.S. citizen.

The danger that more U.S. citizens will be erroneously arrested and deported through a summary removal procedure has increased as reliance on these processes swells and with the general expansion of immigration enforcement in border communities. As Rosenbloom notes, while a person with U.S. citizenship presenting him or herself at a port of entry is likely to be prepared for inspection and have his or her passport on hand, “the exponential expansion of immigration enforcement over the past few decades has increased the potential for individuals with a variety of statuses—from undocumented immigrants to those in lawful immigrant or non-immigrant status to those who are U.S. citizens—to interact with such enforcement in one form or another.”264 The possibility

reality of the border. . . . What I see all the time is people

who shouldn’t be removed getting removed.”258

Identifying citizens is, at once, a simple and a complex

issue. Legal scholar Jennifer Koh Lee explains that while

the citizen/non-citizen distinction appears straightforward,

in fact, that fundamental line is sometimes “unclear and

unresolved.”259 Similarly, legal scholar Rachel Rosenbloom

observes, “Although most citizenship claims are easily

documented, there remain many U.S. citizens who have a

tenuous evidentiary hold on their status.”260 U.S. citizens

are not required to “register” in a national database, and

most of us do not carry our birth certificates or other proof

of U.S. citizenship on our person. Moreover, some people

are automatically U.S. citizens by law under “acquired

citizenship” without being born in the United States.

As of 2010, there are approximately 2.5 million U.S.

residents who appear to have acquired citizenship when

born abroad.261 Similarly, under derivative citizenship,

a foreign-born child can obtain citizenship if at least

one parent naturalizes before the child turns eighteen

and meets other statutory criteria.262 Jennifer Koh Lee

Dominican immigrant Roberto Mercer holds his daughter Gianela, 10 months, at a special Valentine’s Day naturalization ceremony for married couples on February 14, 2013, in Tampa, Florida.

John Moore/Getty





daughter to school in the United States where she would

receive the treatment and therapy she requires for her

speech and language impairment.

As part of Mr. Olivas’s wife’s application process, the U.S.

Consulate in Juárez, Mexico, interviewed Mr. Olivas’s

mother, interrogating her for hours and coercing her to

sign a “confession” that her son had been born in Mexico.

of being misidentified and funneled into the immigration system is compounded by incorrect assumptions about the “identifiability” of a U.S. citizen and, as several advocates along the southern border note, a lack of understanding

about border communities and their fluidity.

Oscar Olivas is a U.S. citizen with a U.S. citizen daughter

with disabilities. He was born in Los Angeles County in

1969. His mother, who was undocumented at the time (but

is now a U.S. citizen), was afraid to go to a hospital given

her undocumented status and so she gave birth with the

assistance of a midwife in a private home. He was issued

a delayed birth certificate when five months old. In 2009,

Mr. Olivas began the process of applying for an immigrant

visa for his wife and stepson, both Mexican nationals; the

couple already had a U.S. citizen daughter but decided to

move to Mexicali, Mexico (near the Californian border),

while the application process went forward. The family

planned that Mr. Olivas would work in the United States,

crossing the border each day and taking his U.S. citizen

“For three years, I’ve been waiting to have my day in court. We are stranded in Mexico and desperate to return to the United States.”

Oscar Olivas, a U.S. citizen, with his wife, stepson, and U.S. citizen daughter in Mexicali, Mexico. The U.S. government refuses to recognize Oscar as a U.S. citizen, so he and his family are in limbo in Mexico, which does not recognize Oscar as a Mexican citizen.





delaying or obstructing an officer or emergency medical

technician,” he was questioned by prison staff about his

citizenship: “I said I don’t know where I was born but I

think I was born here, in the U.S. . . . I told them I grew

up in part in Mexico. Then they just took me out and

deported me.”268 Several days later, he walked to the port

of entry and asked to speak with a border official: “I said

I needed help. I said, ‘I think I’m a U.S. citizen.’ They just

put me in handcuffs and took me to CCA [a detention

facility].”269 Peter was given the chance to see a judge, but

the immigration judge incorrectly placed the burden on

Peter to provide proof of citizenship and ordered him

removed, suggesting he try to apply for a passport.270 Once

again, Peter tried to return to his family in the United States

but was turned back: “I just signed the papers without

knowing what they were. I asked if this was going to get

me in trouble and they said, ‘No, it’s just for your release.’

They would ask where I was born and I would say, ‘I don’t

know, I thought I was born here in the U.S.’”271 Peter was

finally able to enter without inspection, restart his life in

California, and became engaged to a U.S. citizen. Three

years later, CBP showed up at the gym where he worked,

arrested him, and referred him for federal prosecution for

illegal reentry. Peter then spent 13 months in federal prison

for reentering; with the help of his federal public defender,

Peter is appealing and hopes to win recognition as a U.S.

citizen. In the meantime, with no Mexican birth certificate

and no ID, he is constantly harassed by Mexican police in

Tijuana and feels lost: “What am I doing here?” he asked.272

Maria de la Paz is a 30-year-old U.S. citizen who, like her

two sisters, was born in Houston, Texas; her mother is an

LPR. When Maria was 18, she was issued an expedited

removal order at a port of entry in Texas by a CBP officer

who refused to believe she was a U.S. citizen. As detailed

in her habeas petition, the officer who inspected her at the

border said that someone who did not speak English could

not be a U.S. citizen and ordered her removed.273 Although

In 2011, while attempting to return to the United States,

Mr. Olivas was told by CBP officers that he could not

enter but would see an immigration judge to verify his

citizenship claim. That hearing never came, but on one of

Mr. Olivas’s attempts to speak with CBP about his hearing,

he was informed by a CBP officer that a removal order had

been issued against him. “For three years, all I’ve wanted is

my day in court so that I can prove that I am a U.S. citizen

and that my family and I should be allowed to return to

the United States. But the government has denied me any

opportunity to prove my case. As a result, my family and I

have been stranded in Mexico. We are desperate to return

to the country we call home.” After the ACLU filed a lawsuit

on Mr. Olivas’s behalf in June 2014, the U.S. government

revealed that it had never filed the removal order—but it

also had never served Mr. Olivas with an Notice to Appear

in immigration court, leaving him in limbo these last three

years. Mr. Olivas’s attorney, Gabriela Rivera, observed that

her client’s case, while complicated, was not exceptional

given the procedural and structural deficiencies in the

expedited removal system: “Mr. Olivas’s unlawful expulsion

was not an innocent mistake by immigration enforcement

officers,” says Ms. Rivera. “It was the predictable

consequence of a system that relies on racial and ethnic

stereotypes, empowers officers to act as judge, jury and

executioner, and all but prohibits affected individuals

from seeking judicial review.”265 Mr. Olivas and his family

continue to live in Mexico, in limbo, where Mr. Olivas

cannot work to support his family and where his daughter

is unable to access the necessary care and treatment she

needs for her disabilities.266 Ms. Rivera observes that the

U.S. government’s continued refusal to allow Mr. Olivas

to return to his homeland is more than a symbolic injury

for Mr. Olivas and others in his situation: “The benefits

of citizenship—including stability, mobility, political

rights, and protection against arbitrary expulsion—are not

theoretical. They have real-life implications for people like

Mr. Olivas and his family.”267

Peter V. has always believed that he was a U.S. citizen

like his siblings, even though part of his childhood was

spent in Mexico, a not-uncommon experience along the

southern U.S. border. His mother died when he was two,

and his father, whom Peter and his family believe to be a

U.S. citizen, was not a part of his life. But while serving

a criminal sentence in California in 2003 for “resisting,

“I said I needed help, [that] I think I’m a U.S. citizen. They just put me in handcuffs...”





Laura and Yuliana were traveling to the United States with

their mother, who had a valid tourist visa, and Yuliana’s

infant daughter. Laura had her U.S. passport and Yuliana,

who had applied for a passport but had not yet received

it, showed her Texas ID, the receipt for her application for

a U.S. passport, and the Texas birth certificate.278 When

the CBP officer in Brownsville, Texas, noted that Yuliana

had had a midwife birth, he detained and interrogated the

women for over ten hours.279 Speaking later to a journalist,

Trinidad said, “It was as if we had been kidnapped.”280 After

hours of threats, the officer extracted a “confession” from

Trinidad that the daughters had been born in Mexico; he

then seized all their documents, treated Laura and Yuliana

as having “withdrawn” their applications, and issued an

expedited removal order for Trinidad, also charging her as

inadmissible for fraud.281 Although the U.S. government

later recognized that Yuliana and Laura were U.S. citizens

after their lawsuit in federal court, Trinidad is, to this

day, banned from entering the United States given the

erroneous fraud finding.

Another plaintiff in the case, U.S. citizen Jessica Garcia,

lived in Mexico with her husband but worked in Texas.

In 2009, she was trying to cross through the Brownsville,

Texas, port of entry on her way to work when she was taken

to secondary inspection, locked in a room, and accused by

CBP officers of making false representations. When Ms.

Garcia refused to sign any paperwork or “confess” to using

a false birth certificate, the officer confiscated all of her

documents, including her Texas birth certificate. Although

a Notice to Appear (NTA) was issued and she should have

been given the chance to see a judge, DHS never filed the

NTA, so a hearing was not scheduled; instead, Ms. Garcia

was stuck in limbo and lost her job.282

a. U.S. Citizens with Mental Disabilities

As the ACLU and Human Rights Watch previously

documented in a joint 2010 report, Deportation by Default,

individuals with mental disabilities may be at particular

risk of erroneous deportation given the complexity of

immigration law, the continued absence of appointed

counsel in all immigration proceedings, and (in the absence

of a lawyer) the reliance on a person’s own statements and

admissions as the primary evidence.283 As that investigation

her birth was properly recorded in Texas, there were errors

in the spelling of her name and her mother’s name (not

picked up by her mother, who did not read or write), and

her birth was also registered in Mexico. In Mexico, Ms. de

la Paz tried to apply for a U.S. passport, but over several

months, the U.S. Consulate asked for successive pieces of

evidence of her U.S. birth, including school records that

included photos (which did not exist). Finally, in January

2014 and apparently “thinking that there was no other way

to come to the United States to be with her family,” Ms. de

la Paz attempted to cross into the United States but was

caught, arrested, and detained by CBP.274 While in custody,

she again explained that she was born in Texas; according

to the petition, the CBP officer did not attempt to verify

her claim before reinstating her prior expedited removal

order and banning her from returning to the United States

for 20 years.275 After her attorney, Jaime Díez, filed a habeas

petition on her behalf, the U.S. Consulate in Mexico finally

agreed to issue her a passport and allow her to return to the

United States. She returned in July 2014.276

Some cases, like that of Ms. de la Paz, may be complicated

by factual inconsistencies, even when they can be clarified

and resolved. But as Ms. de la Paz’s case also suggests,

some immigration officers may assume that citizenship

is straightforward and always looks the same—and some

may be resistant to the idea that a person who does not

speak English or was not born in a hospital could be a

U.S. citizen. In 2010, several U.S. citizens who were born

in Texas with the assistance of midwives filed a federal

lawsuit challenging the effective denial of their citizenship

without a fair opportunity to defend their rights. The

plaintiffs’ cases highlighted the coercion, intimidation,

denial of counsel, and misconduct by border officials at

ports of entry who abused their authority with ongoing

consequences for both the U.S. citizens and their families.277

Two of those women, sisters Laura and Yuliana Castro, were

born in Brownsville, Texas, in 1980 and 1984 but raised in

Mexico by their Mexican-citizen mother, Trinidad. In 2009,

“It was as if we had been kidnapped.”





returning to New York after visiting

family in Jamaica; CBP believed her

passport was fraudulent.286 In 2007,

Pedro Guzman, a 29-year-old U.S.

citizen with developmental disabilities,

was serving a sentence for trespassing

in a jail in California when ICE

misidentified him as a non-citizen

and coerced him to sign a voluntary

departure order. He was deported to

Mexico, where he was lost for almost

three months before he was found by

family and able to return to his family

in California.287 In 2008, U.S. citizen

Mark Lyttle, diagnosed with bipolar

disorder and developmental disabilities, was misidentified by

jail and ICE personnel as a Mexican citizen and deported to

Mexico (and from there to Honduras and then Guatemala).

Mr. Lyttle quickly attempted to return to the United States

but was removed with an expedited removal order. It took

four months for Mr. Lyttle to return home to the United

States and even when he did, with a U.S. passport sent to the

U.S. Consulate in Guatemala, his prior deportation raised a

red flag with CBP at the airport.288 Fortunately, his attorney

was present and able to ensure his release and return to his

family.289

In 2003, U.S. citizen Michael C. was interviewed by ICE

while serving a sentence for assault in a Texas state prison

and deported through 238b as a non-citizen convicted of

an aggravated felony. Although ICE contends he admitted

to being a Mexican citizen, Michael’s birth certificate from

Texas demonstrates he was born in the United States,290 and

on the notice of intent to issue a final administrative order,

he contested his deportability and told ICE that he was a

U.S. citizen.291 Before the end of his sentence, he wrote to

ICE wishing to know if they still intended to deport him

even though he was a U.S. citizen; in response, DHS wrote

that he had not produced any evidence of his citizenship

while in prison.292 He was removed to Mexico but managed

to return to the United States; his case is ongoing.293

* * *

If there are any bright-line rules in U.S. immigration

law, one of them is certainly that U.S. citizens cannot

demonstrated, a person with a severe mental disability

facing deportation must rely upon an immigration judge

who is able to recognize that a person facing removal has a

disability and does not understand the proceeding to try to

help them—but sometimes this occurs quite late in the case

and any assistance is limited in the absence of appointed

counsel.284 However limited courtroom proceedings have

proven to be, they at least provide some statutory and

regulatory safeguards for people with mental disabilities.285

Individuals ordered deported through summary removal

proceedings, which can be very quick and are handled by

immigration enforcement officers, do not even have the

limited safeguards available to individuals with disabilities

in court. As a result, there have been several cases of U.S.

citizens with mental disabilities deported from the United

States.

In 2000, Sharon McKnight, a U.S. citizen with cognitive

disabilities, was deported through expedited removal when

U.S. citizen Mark Lyttle was misidentified as Mexican and deported; he was deported again through expedited re-moval when he tried to return.

U.S. officials deported Mark Lyttle, a U.S. citizen with mental disabilities, through expedited removal after a prior unlawful deportation.

ACLU of North Carolina





citizen children, he is pursuing his claim that he is a U.S.

citizen so he can at least visit his family.298

b. U.S. Residents with Valid Status

While the deportation of a U.S. citizen is the epitome of

an unlawful deportation, other individuals such as lawful

permanent residents (LPRs), refugees, asylees, and others

on valid work or tourist visas are not supposed to be

deported without seeing a judge. In some circumstances,

these individuals may nonetheless lose their immigration

status and be deported, for example, if convicted of certain

criminal conduct; however, even in these circumstances,

they are entitled to a hearing in immigration court to

determine whether they are, in fact, removable and whether

they are nonetheless eligible for relief from deportation.

As previously noted, sometimes removability is a complex

determination, and it may not be obvious to an arresting

immigration enforcement officer that a person has status

that makes them non-deportable. The speed with which

these removal procedures occur, combined with the

lack of supervision and legal assistance, make errors in

identification of a non-citizen inevitable.

In some cases, the individual’s status is not so difficult to

determine and can be easily verified; even in these cases,

however, immigration officers have quickly deported

individuals with lawful status in the United States—

sometimes sending them to life-threatening situations. For

example, Nydia R. is a 36-year-old transgender woman

from Mexico with asylum in the United States who, since

securing asylum, has twice been illegally deported through

summary removal procedures. After years of threats and

harassment for being transgender, Nydia fled to the United

States in 2003. Three years later, her nephew in Mexico was

dying of cancer, so she returned to see him; the danger and

threats persisted, so she attempted to return to the United

States. At the border, she told the immigration officers

about the violence she experienced in Mexico but was

nonetheless deported to Mexico without being referred

for a credible fear interview. “I showed the officers the

markings on my body from being beaten and they didn’t

seem to care,” Nydia told the ACLU.299 She eventually

managed to enter the United States without inspection

be deported from the United States. Thus, an individual

who claims to be a U.S. citizen when subject to expedited

removal is entitled to a formal removal hearing before

an immigration judge with the required safeguards,

including the right to counsel (at one’s own expense) and

the right to appeal the immigration judge’s order.294 After

Pedro Guzman was erroneously deported and a lawsuit

brought on his behalf by the ACLU, ICE issued guidance

on citizenship claims by detainees; under this guidance,

ICE officers must consult with the Office of Chief Counsel

in cases with “some probative evidence” of citizenship

and must “fully investigate the merits” of such claim.295

It is unclear whether CBP has similar guidance and what

training, if any, exists to verify and investigate claims to U.S.

citizenship.

The number of known cases of U.S. citizens deported from

the United States remains low, and according to DHS data

provided to The New York Times in response to a FOIA

request and analyzed by the ACLU, in FY 2013, only 97

individuals were referred to an immigration judge for

a claimed status review hearing, where individuals who

claim U.S. citizenship can seek review of their expedited

removal order.296 Individuals are supposed to be referred to

an immigration judge if they claim “under oath or under

penalty of perjury” to be a U.S. citizen, LPR, asylee, or

refugee.297 There could certainly be many more U.S. citizens

who were not referred for review. And there could be others

who did not know about their U.S. citizenship because they

have derivative or acquired status. Timothy D., a Canadian

interviewed by the ACLU, believes he has a derivative

citizenship claim; he did not raise that claim when issued

an expedited removal order because he believed he was

already lawfully in the United States on his business visa

and the U.S. citizenship was not his foremost reason for

being in the United States. Now that he has been deported

and is separated from his U.S. citizen wife and two U.S.

“I showed the officers the markings on my body from being beaten and they didn’t seem to care.”





Despite this terrifying treatment, Nydia did tell the officer,

as documented in her interview, that she had asylum status

and that she was afraid to go back to Mexico. According

to the sworn statement, recorded during her interview

with CBP, Nydia said she left Mexico because she was

“discriminated against by my family and by people in the

city. About a week and a half ago … some gang members

grabbed me in the street. They tried to stab me and take

out my implants. . . . They hit, beat, and raped me.”302 Close

to 3 a.m., after hours of questioning, her statement was

read back to her in Spanish, and she signed it. Minutes

later, Nydia says, the officer told her that seeing a judge

would be useless; still, Nydia recalls, “I said I would rather

see a judge and stay in detention.”303 At that point, she was

brought more papers to sign—in English, which she could

not read—and she signed them, assuming they were the

same papers she just signed in Spanish. In fact, it was an

expedited removal order. According to the form, the officer

wrote, “At approximately 0445 hours, [ ] admitted to not

having a fear and concern and requested to be returned

to Mexico.” Nydia, who was still bruised from her recent

attack and rape, was placed in a van and dropped in

and, in 2008, she applied for and received asylum. Nydia

told the ACLU that she planned to apply to adjust her

status and become a lawful permanent resident but did not

have the money.

In 2010, Nydia’s mother died, and Nydia returned to

Mexico for the funeral. “I was afraid [to go back], but in the

moment, I just blocked out everything that had happened

to me; when I got there, I thought ‘Oh my God, why am I

here?’ . . . All I could think about was how much I wanted

to see my mother for the last time, but once I got there, I

was terrified.”300 In Mexico, Nydia says her family rejected

her, and she was attacked by groups of men who tried to

remove her breast implants, and then beat and raped her.

Nydia was robbed of her money and all her documents

and spent almost a year trying to find help in Mexico so

she could return to the United States. Finally, on March

18, 2011, she tried to enter the United States through San

Ysidro. Nydia recalls:

I was so desperate; all I wanted was to be here [in

the United States]. In Tijuana I met someone who

sold me an ID. I tried to enter and that’s when

they detained me. I explained my situation and

asked to see a judge. …The officials were trying

to find out if I was actually a woman “naturally.”

They were saying, “You look her over!” “No, you

look her over!” Finally, they told me to take off my

pants in front of two men. . . . Just imagine, you

try so hard to be the person you want to be, you

undergo surgery, which is incredibly painful. And

then they don’t even treat you like a person.301

Nydia had asylum in the U.S. when she was illegally deported—twice—at the border. Deported to Mexico, Nydia was kidnapped and raped.

GETTY

Nydia, a transgender Mexican immigrant, already had asylum when U.S. border officials deported her back to danger in Mexico.





deportations were not authorized by law, there was no

immediate legal recourse to ensure their safe return.

Francisco N. G., a 21-year-old from Mexico, came to the

United States with his family in 1999. He was six years

old when his family settled in Texas, where he attended

elementary, middle, and high school. When he was a senior

in high school, his father attacked him and his mother.

Francisco, who was trying to protect his mother, called

the police and testified against his father in court; because

of their cooperation, both he and his mother were able

to apply for a U visa (a nonimmigrant visa for victims of

crimes). Recalls Francisco, “A few months later, we attended

court and won the case that put us on a path away from my

dad.”306 In early 2014, Francisco was driving himself and

coworkers to work at a construction site near San Antonio,

Texas, when he was pulled over by police for having an

expired registration sticker. The police called ICE, who

arrested everyone in the car. Francisco was also arrested

and handcuffed by an officer who, Francisco recalls, told

him he was going “back to where I came from.”307 Francisco

was detained and questioned by several officers about what

he was doing in the United States. After approximately 12

hours, he was moved from San Antonio to Laredo, where

Mexico, where she slept on the streets, afraid to go back to

her hometown.

On April 26, 2011, Nydia again tried to return to the United

States; when she was arrested by immigration officers, she

tried to explain that she already had asylum in the United

States. The officers ran a Central Index System check, which

showed that Nydia was in fact an asylee.304 Nonetheless, she

was processed through reinstatement and given a removal

order prohibiting her from reentering the United States

for 20 years. Deported again to Mexico, and immediately

in danger on the streets, Nydia

looked for work along with another

transgender woman but faced abuse

wherever she went. Says Nydia, “That

is when the other transgender woman

and I were kidnapped and forced

to work for Los Zetas [cartel]. They

made us prostitute our bodies for

them.” Nydia was able to escape after

several months and returned to the

United States without being arrested.

“I really like living here in the U.S.

The thing I like the most is that I feel

free. Obviously, I’m still afraid but the

truth is that I feel protected.”305

Other individuals interviewed

by the ACLU were also deported

without a hearing when they were

misidentified as having no status in

the United States, and although their

Even with a U visa and 15 years in the United States, Francisco was deported and then given an expedited removal order when he asked for help at the border.

On the bridge between El Paso, Texas, and Ciudad Juárez, Mexico.





to Mexico. Although his attorneys and family are in Texas,

he was transferred to a detention center in Washington

State to await his credible fear interview. After several

days, Francisco was released from detention, his expedited

removal order was terminated, and he returned to his

family in Texas.

Guadeloupe was also deported despite having been

approved for a U visa and after showing the approval

paperwork to CBP officers.311 Guadeloupe, a 36-year-old

mother of five U.S. citizen children, came to the United

States when she was 15 after the death of her mother to

join her U.S. citizen and LPR brothers, who were living in

Texas. In Texas, where she has lived for almost 21 years, she

raised five U.S. citizen children but was physically abused

by both her partners; the first was a U.S. citizen and the

second an LPR. Guadeloupe was twice deported at the

port of entry in El Paso, Texas; both times, the forms were

in English and she says she did not understand what was

happening. On the second occasion, in 2011, Guadeloupe

was prosecuted for illegal reentry and served 11 months

in federal prison, but while in prison she was able to apply

and receive approval for a U visa, based on the domestic

violence she experienced. In 2013, during a routine check-

in with her probation officer in El Paso, the probation

officer called CBP to come and interview Guadeloupe.

Guadeloupe explained that she had an approved U visa and

presented the papers, but the CBP officer proceeded with

her deportation. “He took [the visa paperwork] away and

said it was no good,” recalls Guadeloupe. “He then handed

over my deportation order that had my signature already

he says officers threw away his U visa ID and accused him

of lying about his status:

The officer who had the forms told me that it

didn’t matter, that even if I was telling the truth

the judge could overturn the decision and send

me back to Mexico. …I had three or four officers

telling me, watching, and waiting for me to give

up and sign that sheet. . . . When I explained

about my status and asked if I could call [my

attorney at] American Gateways, they said no.

When I asked to call my family, they said no. I

kept asking but finally one of the officers told me

to understand that I would get no call until they

were finished with me. The only call I got to make

was (as I was leaving) to my mother to let her

know what had happened.308

The officers, Francisco says, told him he was being charged

with smuggling, and the other men in the car wanted to be

deported, so if he went to court there would be no one to

testify in his defense and he would go to prison for many

years. The next day, he was deported to Piedras Negras,

Mexico, where he knew no one.

At the time of his deportation, Francisco was saving up for

dentistry school and working to support his mother and

brother. His deportation was incredibly difficult for his

family in Texas. Recalls Francisco, “I was a really big help

to my Mom in raising my younger brother and helping out

with the bills. So financially and emotionally, they [were]

going through some difficult times.”309 After Francisco’s

deportation to Mexico, Francisco’s father was also deported

and started threatening to harm his son. Although he has

valid U status, Francisco still needed authorization to

reenter the United States after his removal; however, the

normal route, consular processing (which includes fees

and an interview with a U.S. consulate), would have been

very lengthy and expensive, as he would also have had

to apply and wait for a waiver. Because of the threats he

was facing from his father, Francisco presented himself at

the U.S. border, accompanied by an attorney, and asked

to be paroled into the United States because he had U

status.310 CBP, however, refused to admit him and appears

to have issued an expedited removal order. Fortunately,

Francisco was able to explain his fear of being deported

Javier Pelayo, an LPR with mental disabilities, was deported by an officer who assumed he was undocumented. He died apparently trying to return to his family.





to the CBP officers that her mother was very ill and that

her parents do not speak English. Gabriela recalls that

the officer told her that her parents could either abandon

their LPR status or go before an immigration judge. “[The

officer] let me talk to my mom, and my mom said, ‘I don’t

know what they are talking about, I don’t understand.’”319

Gabriela and her mother decided she should ask to see a

judge who could verify their right to return home to the

United States, and Gabriela communicated this to the CBP

officer. Gabriela says several hours went by before the CBP

officer called her back and stated her parents were being

processed for abandonment of LPR status.320 Although

CBP did not ultimately issue a summary removal order

while also stripping the couple of their LPR status, this

couple is now in legal limbo and without a formal means to

challenge this deprivation of their rights and status.

* * *

In all of these cases, while the person’s status might not

have been obvious to the arresting and interviewing DHS

officer, the claim should have triggered more serious review

and at least an opportunity for the individual to speak to a

lawyer and see a judge before more penalizing action was

taken. Even for those deported who were eventually able

to return to the United States, the emotional and financial

costs to them and their families have sometimes been

significant and yet have no redress.

2. Expedited Removal of Tourists and Business VisitorsExpedited removal allows immigration officers to remove

non-citizens who are “inadmissible,” meaning they are

attempting to enter the United States without valid travel

documents or through fraud and misrepresentation. In

practice, immigration officers at ports of entry sometimes

remove individuals with seemingly valid entry documents

whom an officer suspects of not complying with their visa.

For example, if a border officer believes that someone on a

valid tourist or business visa actually intends to immigrate,

he or she might accuse the individual of fraud or

misrepresentation. Or, according to advocates interviewed

and cases documented for this report, if an officer suspects

the individual is doing work not authorized by that specific

signed.”312 Guadeloupe was deported to Ciudad Juárez,

Mexico, where she was homeless for over two months:

“In Mexico, I had no ID, no money, no connections to

start my life again, no way to get a job. I was legitimately

afraid of dying there.”313 Advocacy from her attorney and

the American Immigration Council eventually secured

her return to her children in Texas, but she remains afraid

that at any moment, she could again be picked up and

deported.314

Javier Pelayo was an LPR with mental disabilities who

came to the United States as a young child and grew up in

Texas. Given his disabilities, his family encouraged him not

to carry his LPR card with him so that he would not lose

it. In April 2000, Mr. Pelayo went to a fast food restaurant

and was arrested by Border Patrol agents who apparently

assumed he was undocumented and deported him, after

almost 20 years in the United States. His mother, also

an LPR and a farm worker, searched for him at jails and

hospitals to no avail. “At first when he disappeared I tried

to find him, asking everybody for information,” she said.

“That was for weeks. Then they told me he was dead.”315

A month later, his body turned up in the river; he had

apparently tried to swim back to his family in Texas.316

Rocio and Nicolas L., a retired LPR couple originally from

Argentina, had been LPRs for over 20 years; they lived

in California near their daughter and her family. The

couple was returning to the United States after seeking

less expensive medical treatment abroad when a CBP

officer pressured them to “abandon” their LPR status at

the Atlanta, Georgia, airport. Under federal law, a lawful

permanent resident (LPR) is not treated as an arriving non-

citizen seeking admission when they return to the United

States.317 However, there are some exceptions, notably

(1) if the individual “has abandoned or relinquished that

status” or (2) if he or she “has been absent from the United

States for a continuous period in excess of 180 days.”318 In

these circumstances, an immigration officer can treat the

individual as having abandoned their status as an LPR.

Rocio, accompanied by her husband, who has some mental

health difficulties, had been receiving cancer treatment in

Argentina and was returning after four months abroad.

After hours of detention and interrogation, they were

allowed to call their daughter, Gabriela H., who explained





person’s status to removal—can happen without

any check on whether the person understood

the proceedings, had an interpreter, or enjoyed

any other safeguards. To say that this procedure

is fraught with risk of arbitrary, mistaken, or

discriminatory behavior (suppose a particular

CBP officer decides that enough visitors from

Africa have already entered the United States)

is not, however, to say that courts are free

to disregard jurisdictional

limitations.321

As with most expedited removal

orders, there is no meaningful

opportunity to challenge these

orders or have them rescinded. In

a recent decision, however, the U.S.

Court of Appeals for the Ninth

Circuit determined that despite

limitations on reviewing whether

a CBP officer correctly identified

someone as inadmissible,322 courts

do have the ability to review the

threshold question of whether CBP

had legal authority under the statute

to place a non-citizen in expedited

removal proceedings.323 For example,

if a person was, as a legal matter,

incorrectly identified as inadmissible

(and thus, given an expedited removal

order), he or she should still have the

opportunity to bring this to a court

visa, the officer might cancel the visa and also immediately

issue an expedited removal order.

Officers have enormous discretion to make these

determinations, and there are no regulations specifying

what facts and evidence an officer must consider and

produce when deciding to cancel a visa and issue an

expedited removal order. Courts have recognized the

incredible power this gives to line officers at a port of entry

(and beyond). In Khan v. Holder, the U.S. Court of Appeals

for the Seventh Circuit, while recognizing limits on its

authority to dissect an expedited removal order, observed:

The troubling reality of the expedited removal

procedure is that a CBP officer can create the

[] charge by deciding to convert the person’s

status from a non-immigrant with valid papers

to an intending immigrant without the proper

papers, and then that same officer, free from

the risk of judicial oversight, can confirm his

or her suspicions of the person’s intentions and

find the person guilty of that charge. The entire

process—from the initial decision to convert the

For Mexicans and Canadians who lawfully work in the United States each day, expedited removal—or seizure of their visa—is a looming threat.

Thousands of people enter and leave the United States each day. Many lawfully enter the United States to work or study while living in Mexico or Canada.





where products under warranty could be inspected. Scott

L., one of Yolo Medical’s employees trained in highly

specialized technical repair work, lives in British Columbia

and would periodically drive to Washington State to

perform routine repair work on Yolo products at the

distribution center. Yolo Medical prepared a B-1 (business)

visa application, which Scott brought to CBP, but it was

rejected and he was told he could perform only warranty

inspection work in the United States. Yolo Medical engaged

a lawyer, adjusted the application, and brought it to CBP,

which then said that Scott would need to pick up any

products for repair and bring them to Canada for repair.

One day, visiting the Washington distribution center, Scott

picked up products for repair; before returning to Canada,

he noticed that one customer’s product needed only a small

adjustment to be fixed, which he did at the distribution

center. Scott says he did not think anything of it, but when

he got to the border, he was questioned by an immigration

officer: “CBP asked me if I did any work in the U.S., and I

said no because I didn’t consider that actual work; but they

called the warehouse and asked if I had any tools, and [the]

receptionist said yes, I had a screwdriver. Then they said I

had intentionally lied to the border agent.”327

Scott was detained for approximately 8 hours until he

signed an expedited removal order. The result, says Scott’s

supervisor Lorenzo Lepore, is that Yolo Medical has closed

its branch in the United States, laying off U.S. citizen

employees, and added significant costs and time to its

operations: “Customers pay a lot more to get their warranty

work. . . . No one crosses the border anymore to do this

work. It’s really complicated the process, made it longer and

much more expensive.” For Mr. Lepore, it does not make

sense to try again to get permission for an employee to

cross the border, after their last experience, even though the

company previously planned to expand operations in the

United States:

We tried to comply with whatever we were told to

do. . . . [E]ven after we did everything [CBP] told

us to do, [Scott] still ended up with an expedited

removal order. The biggest thing we take from

this is that you, as an individual or a company,

have no rights. We did everything by the books

and we still lost. . . . It’s just been one bad thing

and dispute that CBP had the legal authority to place him

or her into the expedited removal process in the first place.

This is a new decision, however, and for most people,

challenging an expedited removal order and its factual

basis—however tenuous—will continue to be difficult.

Along the southern and northern U.S. land borders,

where people from Mexico and Canada routinely and

lawfully work or study in the United States and cross

the international border as part of their daily commute,

expedited removal remains a threat. Officers have enormous

power to issue orders or take away a person’s visa based on

subjective assumptions and with limited evidence. Human

rights advocate Crystal Massey, working in New Mexico at

the Southwest Asylum & Migration Institute, has observed

that people with valid visas who cross into the United States

to visit family, go shopping, or attend church services can

suddenly have their border crossing cards taken with no

explanation and little recourse: “There is no investigation;

the government doesn’t have to share anything at all. And

it’s too late when they’ve taken your visa.”324

Rosalba, a 56-year-old Mexican woman, has regularly

traveled to the United States, always on a valid tourist visa

that she has never overstayed. In 2010, she married a U.S.

citizen who lives in Texas; they kept separate residences,

Rosalba in Mexico and her husband Raoul in Texas,

visiting each other every couple of weeks. Raoul is ill with

throat cancer; he requires surgery every two months and

his disability checks are his only source of income. On

September 24, 2010, Rosalba was driving to Texas to see

her husband and his sister, who was in the hospital. She

recalls that the border officials stated they wanted proof her

sister-in-law was in the hospital and took her into an office,

searched her, and then pressured her to sign an expedited

removal order: “The official was insisting and insisting, and

telling me I lived in San Antonio, and that if I didn’t admit

[it], he could put me in jail. . . . I was scared, so I signed

it.”325 According to Rosalba’s attorneys, even though staff at

the U.S. Consulate in Mexico agree that Rosalba should not

have been issued an expedited removal order, she must still

apply for a waiver and remain outside of the United States

for now.326

For years, Yolo Medical, a Canadian medical distribution

company, had a distribution branch in Washington State,





no right to judicial review of the circumstances), some

advocates report that once a person has been issued an

expedited removal order, getting another visa to reenter the

United States—even after the five years have passed—can

be difficult. In cases where a person appears to be making

a mistake and not willfully attempting to commit fraud

or immigrate or work without authorization, allowing

the individual to withdraw their application would be a

more rights-protective and less punitive approach that also

recognizes the realities of the interviews at ports of entry

and the complexity of immigration law.

Roland J., a 41-year-old Indian national, works in the

computer software field. He first came to the United

States in 2003 on an H-1B visa (a work permit) and later

converted to a different nonimmigrant work visa in 2013.

Roland regularly traveled to Canada for his work and in

September 2013, while his new visa was pending, he says

he called several CBP offices to see if he could travel while

his visa was being converted. Unable to get an answer by

phone, Roland went to a port of entry and asked a CBP

officer who, Roland recalls, told him that he could travel

while the visa was pending. Roland went to Canada but on

his return was told he could not reenter. “The supervisor

came and he started laughing. He asked me to prove that I

spoke to the [other] officer yesterday,” says Roland. “I went

to another border crossing because I thought these officers

were making a mistake.”331 But the officers at the next

border crossing said they could not help him either. He

tried yet another port of entry where an officer approached

his car. According to Roland,

I explained I didn’t want to gain entry but I

wanted to find the solution to the problem. He

said I had to turn over to the booth so he could

talk to me. . . . I was there 3 hours and they

started to fill out a lot of paperwork. They asked

me to sign a paper—I asked if it was good or bad

and, they said, “neither good or bad,” so I signed.

But then he told me it was a removal order.332

Desperate and confused, Roland tried to get into the

United States one more time, where his house, his job, and

all his life savings were located. But immigration officers

reinstated his prior expedited removal order. “The officer

had checked with his own pen where I was supposed to

after another when we are just following the rules.

The ever-changing rules.328

For Scott, the expedited removal order has been

particularly problematic because his siblings live in the

United States and he has had to miss family reunions while

waiting for the five years to pass so he can lawfully return.

Zayyed is a professional chef in Mexico; friends in

California invited him to visit and asked if he would cook,

for free, for a party during his stay. Zayyed, who always

traveled to the United States on a valid tourist visa, which

he claims never to have overstayed, was stopped at the

airport upon his arrival in the United States. According to

his brother Antonio, an LPR living in California, Zayyed

was handcuffed, detained for two days, and repeatedly told

to admit that he was working without authorization in the

United States. Antonio says that Zayyed’s friends confirmed

by phone to CBP that Zayyed was not being paid but was

just going to help them out; nevertheless, he was forced

to sign an expedited removal order and is banned from

visiting the United States, where his siblings live, for five

years.329

Misguided and unsupported assumptions by DHS officers

can lead to unfair deportation orders that cannot be

effectively rectified. To be sure, in some cases immigration

officers may correctly identify a person attempting to

enter the United States without authorization or by

misrepresenting the purpose of their visit.330 Even in those

situations, however, it is possible that some of the alleged

“misuse” was not willful. In such cases, expedited removal

is a blunt and drastic response; in addition to barring the

individual from reentering for five years or more (with

“We did everything by the books and we still lost. . . . It’s just been one bad thing after another when we are just following the rules.”





* * *

In some instances, it is difficult for an immigration officer

not trained in highly complex immigration law and

with dozens of cases to process to determine whether an

individual lacks lawful status in the United States and

is removable. Summary removal procedures, in which

immigration officers are the adjudicator and deporter,

place enormous responsibility on a single officer to

investigate and determine the facts and law in a short

period of time. In cases where the facts and legal rights

at issue are complicated, referring the individual to an

immigration judge to have his or her case evaluated with

a full hearing, and allowing him or her the opportunity

to secure counsel and evidence to support his or her case,

can make all the difference—and does not jeopardize an

immigration enforcement officer’s ability to perform his or

her duties. Unwinding and correcting an unfair and illegal

deportation order—even in the limited cases where that is

possible—is a long and difficult road.

sign saying I didn’t want legal help. He said I could change

my mind at any time. I didn’t know what I was signing.”333

CBP then referred him for prosecution for illegal reentry.

Because he was able to show that he had not committed

any fraud, his sentence was reduced from illegal reentry

to illegal entry, and he was given time served. But with his

reinstatement order, he is banned from the United States

for 20 years. “From my experience, I’ve learned you can be

a law-abiding person and this can happen for no reason.”334

Timothy D., a Canadian national, first came to the

United States in 2001 on a TN (business) visa335 to teach

at a university in Detroit, Michigan. He bought a home,

married a U.S. citizen, and has a six-year-old U.S. citizen

child; he and his first wife divorced, and Timothy remarried

another U.S. citizen with whom he is expecting a child.

In 2012, after spending the day in Canada, Timothy was

crossing back into the United States when CBP officers

at the port of entry in Detroit pulled him into secondary

inspection and started inquiring into his work. Timothy

explained that in addition to being a professor, he did some

graphic design contract work (for which he had registered

with the State of Michigan and was paying taxes). Timothy

says the CBP officer told him he needed a different visa for

that work, which Timothy says he did not realize.336 Getting

a removal order was a shock: “The longer you’re present

in the U.S., the less you think they are going to kick you

out,” says Timothy.337 Timothy recognizes that despite his

deportation and separation from his family, he is one of the

fortunate ones; he has been twice allowed into the United

States on parole to see his son, and his son has been able

to spend summers with him in Canada: “I know plenty

of people who don’t get parole. . . . For people who don’t

have resources or education, this must be disastrous. I’m

lucky.”338

“From my experience, I’ve learned you can be a law-abiding person and this can happen for no reason.”





being that we owe more to non-citizens who are part of

our community and have built ties and claims here. On the

other hand, courts have held that non-citizens arriving at

the U.S. border are not entitled to all the protections of U.S.

constitutional law and, consequently, may have fewer claims

that can be made when entry is denied. As the Supreme

Court explained in one of the first U.S. cases on the rights of

immigrants seeking admission explained:

It is not within the province of the judiciary

to order that foreigners who have never been

naturalized, nor acquired any domicil[e] or

residence within the United States, nor even

been admitted into the country pursuant to

law, shall be permitted to enter, in opposition

to the constitutional and lawful measures of the

legislative and executive branches of the national

government. As to such persons, the decisions of

executive or administrative officers, acting within

powers expressly conferred by Congress, are due

process of law.340

In subsequent years, courts have reaffirmed the position

that non-citizens at the border, seeking admission, have

C. LONGTIME RESIDENTS REMOVED WITHOUT A HEARINGThe summary removal procedures created by IIRIRA

have diverted hundreds of thousands of people away from

court and funneled them through quick administrative

processes. While expedited removal in particular was

largely a political response to the large numbers of Cuban

and Haitian migrants arriving in the United States in the

early 1990s,339 expedited removal and related summary

deportation procedures are not used only against “arriving”

migrants with no ties to the United States. People who have

lived in the United States for most of their lives and have

U.S. citizen family are also swept up into these procedures

that bypass not only the courtroom but also critical

constitutional and statutory protections.

In the past, while recognizing that non-citizens have rights

in the United States, federal law has drawn a distinction

between the rights of immigrants who have entered the

United States and those who are seeking entry at the border.

Immigrants within the United States have due process rights

under the U.S. Constitution to a fair hearing, the assumption

Tijuana, Mexico. U.S. Border Patrol officers at the U.S. border near San Diego, California, look for migrants attempting to enter the United States without authorization.

Sam Frost





for relief, defending their rights and winning relief is a

matter of chance.

1. Deportations at the BorderAt the border, most people arriving without authorization,

including undocumented immigrants returning to their

families in the United States, are processed through

expedited removal and quickly repatriated. The one thing

the expedited removal form requires border officers to

ask when processing an individual for expedited removal

is whether he or she is afraid of returning to his or her

country of origin. As documented in previous chapters,

this questioning is not always done and even when it does

occur, is often superficial.

Although DHS’s notice expanding expedited removal

in 2005 stated that DHS does not have to place a person

in “interior” expedited removal proceedings where the

equities weigh against it, no guidance has been publicly

issued that indicates how a DHS officer would make such

a decision. Indeed, expedited removal does not require any

further questioning by border officials or screening for

possible claims to enter and remain in the United States;

whatever equities a person may have—U.S. citizen children,

long residence in the United States, etc.—often remain

invisible throughout this process. The ACLU interviewed

several people in migrant shelters in Mexico and others

now in immigration proceedings who had been issued

an expedited removal order at the border but had never

been asked about their ties to the United States or referred

for formal removal proceedings at the border. In some

circumstances documented by the ACLU, individuals

who had lived in the United States for many years left the

country only briefly to see their families, attend funerals,

or for other compelling reasons, and yet, upon their return,

they were subjected to expedited removal. Not only has this

practice separated families, but it has also returned some

people, and their U.S.-based family, to very dangerous

conditions in violation of U.S. and international law.

Wendy D. G., a 26-year-old woman from Honduras, came

to the United States when she was 15. She attended high

school in California and has two U.S. citizen children. In

2012, Wendy decided to return to Honduras to see her

more limited due process rights.341 Yet under the drastic

changes brought about by the 1996 IIRIRA summary

removal procedures, certain people who have entered the

United States are nonetheless denied a removal hearing.

Today, the people diverted from the courtroom and

deported without a hearing are not all strangers without

ties to the United States, and some might also win the right

to remain here if given a fair hearing.

Almost a decade ago, when expedited removal was

expanded beyond ports of entry, advocates warned that

individuals who are eligible for discretionary relief (such

as cancellation of removal) but were picked up within the

United States could lose the opportunity to apply for relief

if immigration officers treated any absence from the United

States as invalidating that opportunity.342 Unfortunately,

these concerns have been corroborated. Many people

interviewed by the ACLU were longtime residents with U.S.

citizen children but were deported without a hearing and

without any inquiry into whether or not they had family

in the United States or how long they had been outside

of the country. Indeed, it is not only individuals who left

the United States and are returning whose lives in the

United States are arbitrarily ignored; individuals arrested

by immigration officials anywhere in the United States and

coerced into accepting voluntary departure or removed

because of a criminal conviction are also deported without

seeing a judge.

In all these situations, DHS retains discretion to place

individuals in formal removal proceedings before a

judge; instead, DHS sometimes treats these individuals as

outsiders with no claims, essentially erasing all their years

in and ties in and to the United States. For undocumented

longtime residents of the United States who may be eligible

“I was told I would be taken to see a judge the next day, but instead I was taken to the border and told to go.”





Inocencia C. came to the United States from Mexico when

she was 12 years old and is the mother of three U.S. citizen

children. After living in California for approximately 15

years, she left the United States under coercion from her

abusive partner, the father of her children. The abuse only

intensified when the family returned to Mexico, so after a

few months, Inocencia sent her children back to the United

States and then tried to cross herself. At the port of entry

in San Ysidro, border officers told her she would lose her

children and forced her to sign an expedited removal order.

Inocencia recalls,

I said I don’t know how to read or write and so

he shouldn’t give me any papers, but he just said,

“Sign here on each page”. . . . The officer spoke

Spanish and he yelled at me, “The government

can keep your kids because you are illegal. It is

a crime, what you did.” I didn’t know anything

about the law. Here I know if you abandon your

kids they will take them away from you.346

She made three attempts to return to the United States

and escape her violent ex-partner; eventually, she was

not referred to an asylum officer or for a hearing but was

instead referred for prosecution for illegal reentry.347 After

a federal judge gave her “time served” for illegal reentry

and released her, and with intervention and advocacy from

her federal public defenders, ICE agreed to place her in

immigration proceedings, which are ongoing.

In January 2014, Maria D., who had lived in the United

States for 23 years, left the United States to attend her

father’s funeral in Mexico. According to her attorney,

Maria’s U visa, based on an assault and attempted rape

family: “I decided after so many years, I wanted to see my

family. . . . I never thought my country would be worse

than when I left. But it was. . . . There was so much violence

in the streets. I was thinking, ‘Why did I come here?’”343

Wendy soon attempted to return to the United States,

leaving her daughter with family in Honduras until she

could safely be sent for. When Wendy crossed into Texas,

CBP arrested and detained her, and issued an expedited

removal order. “I regret that I went back [to Honduras].

I’ve been living here [so long].”344 Wendy was moved

through several different detention facilities before being

released on an order of supervision. She is now living in

Miami with her two U.S. citizen children, working with

a temporary permit, and reporting to ICE. But at any

moment, she could be deported. Says Wendy, “I’m a mom

that wants to work for my kids. I want to succeed.”345

Wendy, holding the passport of her U.S. citizen daughter, was ordered deported after she visited family in Honduras—her first time there in almost a decade.

“I said I don’t know how to read or write and so he shouldn’t give me any papers, but he just said, ‘Sign here on each page.’”





Spanish. The officer said well you’ve got to sign

and I said no. The officer said I don’t care if you

sign….look, I already signed for you.352

Braulia was detained at CCA Otay Mesa Detention Facility

(an ICE detention center) and then deported with an

expedited removal order. Almost immediately upon her

arrival in Guatemala, Braulia says, she began to receive

threats from gangs. Braulia’s U.S. citizen children joined

her in Guatemala when she was first deported, but it

quickly became too dangerous, so she sent them home

to California: “They were being followed. People were

calling and threatening the children, saying offensive

things about my 12-year-old girl. Gangs were shooting at

our front porch.”353 Her nephew, who was the head of a

gang and was in prison for the murder of a family, started

demanding conjugal visits from Braulia (his aunt) and

sending her threats. Finally, she fled to Mexico; but around

that time in 2006, her oldest son, Wilmer, who was living

undocumented in California, missed her too much and

attempted to rejoin her in Guatemala.

Recalls Braulia, “I said just come to Mexico and we will

figure it out. He was going to come, but a week before his

birthday he was killed [in Guatemala].” Devastated, Braulia

returned to Guatemala for her son’s funeral and begged the

Guatemalan police to investigate his murder. Braulia says

that the officers told her it was a police bullet that killed

her son and demanded money to investigate further. Days

later, Braulia herself was kidnapped, shown photos of her

murdered son, gang-raped, her eyes and mouth taped, shot

nine times, and left for dead. It has since been confirmed

she suffered in Los Angeles, was pending when she left.

Returning home to California, she presented herself at

the San Ysidro Port of Entry and was issued an expedited

removal order, even though the interviewing officer noted

that she had a pending U visa.348 Maria’s daughter, Claudia,

who lives in California, went to visit her in Tijuana after

Maria was released from U.S. custody. Claudia recalls,

“[Maria] was depressed and crying. Only she knows

how she felt when she was in there. . . . They were being

pressured to sign, and people were saying, ‘If you say you

are afraid, you will stay here for 3 months and not be able

to talk to your family.’ So she got afraid. All she wanted

at that moment was to be released.”349 Maria remains in

Mexico, separated from her family in the United States.

Braulia A. is a mother of five (including four U.S. citizens)

from Guatemala who entered the United States without

inspection in 1991. She left Guatemala with her son, fleeing

violence from both police and gangs: her father had been

murdered and she had been raped by police officers as a

teenager. Braulia moved to California, married, started

a family, and sent money to her mother in Guatemala.

Starting in 1999, the money attracted the attention of gangs

that demanded money from Braulia’s mother. In 2005, a

friend of Braulia’s recommended that she visit a dentist

in Tijuana. Not realizing that she could not travel on her

Employment Authorization Document (“EAD card”),

Braulia, who is not literate in Spanish or English, went to

Tijuana for the day. When she called her husband before

returning to California, and he explained that she could

not travel on her EAD card, Braulia says she panicked and

attempted to reenter by hiding in a truck.350 Arrested at the

San Ysidro Port of Entry, Braulia told immigration officers

that she lived in the United States and was afraid to return

to Guatemala, given the threats against her family. The

officers wrote on her record of sworn statement that she

had no fear and that she had gone to Tijuana for a party,

both of which Braulia denies:351

The officers said, “We don’t care if you are killed

there. Don’t even think about coming back or

we will put you in jail for a long time.” They just

said, “You don’t have a right to anything, you

are a criminal, you are worthless.” The officer

was reading some papers and wanted me to sign

them. I said I can’t read or write in English or

After almost 15 years in the United States, Braulia was deported without a hearing to Guatemala, where her son was killed. Then his murderers raped and shot her.





which his attorney believes to be an expedited removal

order. Cesar remembers, “When I was taken to the facility, I

was given documents to sign and was told I would be taken

to see a judge the next day, but instead I was taken to the

border and told to go.” Cesar had not been back to Mexico

in 14 years.356

Cesar’s inclusion in expedited removal is not exceptional

even though it was unlawful given his long residence in the

United States, but it may not be unique. A report published

by the ACLU of New Mexico showed that many longtime

undocumented residents are swept into these deportation

processes, which deny them a hearing, not when they

attempt to enter the United States but when arrested

by Border Patrol in their “border” communities.357 For

example, 16-year-old Sergio was picked up by Border Patrol

on his way to harvest lettuce 70 miles from the border; he

had lived in the United States for eight years (since he was

eight) but was deported that same day and separated from

his widowed mother and two younger siblings.358

2. Apprehended and Deported in the Interior of the United StatesEven beyond the border area, however, immigration

officials have deported longtime residents of the United

States without giving them the opportunity to see a judge

through administrative voluntary departure (or “voluntary

return”), stipulated orders of removal, or administrative

orders of removal (“238b”). While 238b is supposed to be

used exclusively against individuals convicted of certain

enumerated offenses, voluntary departure can be—and

is—applied to anyone, including individuals who would

otherwise be eligible for discretionary relief such as non-

LPR cancellation of removal.

a. Voluntary Return

While voluntary return is not considered a “formal”

removal order like an expedited order of removal or a

238b order, it comes with consequences that may be just

as severe, particularly for individuals who have been living

in the United States without authorization for over six

months and who are subject to bars on reentry. It may,

by police and media sources that her nephew, who was

released from prison, was behind the murder of her son

and the rape and attempted murder of Braulia.354

With help from her family, Braulia eventually returned to

the United States in October 2007 after a difficult journey

through the mountains in Guatemala and then across

Mexico. Even after returning to the United States, she says

she continued to be harassed and threatened by gangs in

Guatemala: “They called me at my home here in San Diego

and they asked for money. They told me that if I did not

give them money they would cut off my sister’s or my

nephew’s head.”355 Several years later, in September 2011,

immigration officers came to Braulia’s home looking for

someone else and took her into custody when they realized

she had a prior order of removal. After a few weeks, she

was referred for a reasonable fear interview and remained

in detention until January 2012, when she was released on

bond. She finally won relief under the Convention Against

Torture in March 2014.

As discussed above, since the expedited removal procedure

was expanded horizontally and vertically across the entire

border (within 100 miles of the U.S. international border),

even individuals who are not at a port of entry and may not

have left the country can be swept up by expedited removal.

Under the regulations, individuals who have been in the

United States for 14 days or more should be referred to an

immigration judge, but our investigation suggests that in

many cases, Border Patrol officers are not asking individuals

when they first came to the United States. As a result, some

individuals who have been in the United States for many

years without leaving are also deported without a hearing.

For example, Cesar came to the United States in 2000

and has a U.S. citizen stepdaughter whom he has raised

since she was five. In early 2014, Cesar, who worked as a

landscaper and had lived continuously in the United States

for 14 years, was stopped by local police in Weslaco, Texas,

while driving with a colleague to a waste management

facility. Weslaco is considered part of the border zone

because it is within 100 miles of the U.S.-Mexico border.

The police officers who stopped Cesar did not charge him

or his colleague with any traffic violation; rather, they

called CBP to arrest the two men. After many hours of

interrogation and threats by CBP, Cesar signed a form,





attorney or her husband. Instead, she was presented with a

voluntary departure order:

I told [the ICE officer] I wasn’t going to sign

because I wanted to see the judge. But he was

really mean, and he kept insisting and insisting.

When 3 hours had passed, I told them I wasn’t

going to sign anything until my husband arrived

so he could show the papers [that showed] we

were applying for my status. And then the officer

came back and said your husband came and

showed me the papers, and the papers he showed

me are useless to me. I told him I wanted to talk

to my husband. He said, “You are not going to

talk to your husband. What you are going to do

is sign this salida voluntaria or you are going to

jail.” That is when I signed because they said there

were bad people in jail who could do something

to hurt me.365

Although the voluntary return statute allows up to 120 days

for the individual to leave the United States, 24 hours later,

without the chance to speak to her children or husband

or attorney, Veronica was taken to Nuevo Laredo, Mexico.

She is trying to apply for a waiver so she can return to her

children sooner, but for now, Veronica remains in Mexico,

separated from her young daughters. Says Veronica, “Every

day I remember the day that they stopped me. It’s been a

year and it hurts a lot. My family, my husband, we have

always been very close. It hurts me so much to be separated

from them.”366

Emmanuel M., a 25-year-old from Mexico, came to the

United States as a young child and lived in California

continuously for approximately two decades. In 2012,

as he was leaving his house in San Diego for work, he

was stopped by ICE officers. “I kept on asking what was

happening and they said they could not tell me.”367 The

officers gave him several forms to sign, which turned out

to be voluntary return, and said he would be released.

Emmanuel says, “I was happy because I thought I was going

to leave. I signed, they put me back in the cell, and then a

few hours later they took me to Tijuana.”368 Emmanuel had

not been back to Mexico since leaving as a small child. After

two years, Emmanuel says he missed his family too much

(“I’d never been this far away from them,” he says) and

however, have benefits for some individuals, as it preserves

the ability to apply for relief in the future.359

Voluntary return is supposed to be given only at the

request of the non-citizen after he or she has been made

aware of all its consequences—notably, that a person

who accepts voluntary return cannot make any claims for

relief.360 For individuals who would be eligible to apply

for relief from removal and might be able to formalize

their status in a hearing, voluntary return is often not to

their benefit, and it appears that this information is not

communicated to individuals by immigration enforcement

officers.361 Moreover, although voluntary return is not

a formal removal order, in practice it has many of the

same consequences. In particular, individuals who have

lived in the United States for more than one year without

authorization are subject to a 10-year inadmissibility ban

on reentry;362 individuals who have lived in the United

States for over 180 days but less than one year are subject

to a 3-year ban.363 For parents of U.S. citizen children, the

separation is often longer because a person applying for a

waiver and to adjust status must wait until the “qualifying

relative” is 21 years of age.

Veronica V. came to the United States when she was 19. She

married a U.S. citizen and has three U.S. citizen kids, all of

whom live in Texas; she had lived in the United States for

20 years. In 2013, Veronica and her husband were driving

to a hardware store near San Antonio when they were

pulled over by local police who asked her for identification.

Veronica, who was the passenger, did not have any

documentation with her, and the police officer asked if

she was undocumented. She explained that she was in the

process of applying to adjust her status, but the officer

called ICE, which came to the scene two or three hours

later. “I asked the immigration officer if this was correct,

what the police officer had done. He said, ‘No, because you

weren’t driving, you have no criminal history, and he has

no reason to have done this,’” Veronica recalls, “but since

the police officer had called, [the immigration officer said]

he had to take me in.”364 Veronica’s husband immediately

called an immigration attorney and went home to collect

the paperwork showing that Veronica was applying for

immigration status. Although the attorney immediately

contacted ICE, Veronica was not allowed to speak to the





if deported to Mexico, and because she had three young

children in the United States, one of whom was scheduled

for surgery at a U.S. hospital. Instead, the complaint alleges,

DHS officers coerced her to sign a voluntary departure

form and dropped her at the bridge to Reynosa, Mexico.

Her ex-partner murdered her soon after her return to

Mexico.370

Immigration attorney Marisol Pérez says she and her

colleagues routinely see cases where the individual was

coerced into signing a voluntary departure order without

understanding its consequences. Immigration officers, she

says, tell people “either you sign or you are going to jail.”

Even individuals who already have attorneys are vulnerable

when threatened, in the absence of a lawyer, with jail: “We

don’t have control over what happens when we are not

there, in the back room. The officers should be giving rights

advisals . . . Instead, they tell them, you want your rights,

you are going to go to jail.”371

In June 2013, the ACLU filed a lawsuit in Southern

California challenging the coercive use of voluntary

departure and immigration officials’

failure to apply the necessary

procedural safeguards.372 For example,

the lawsuit alleges that officers gave

false information to non-citizens

about their ability to stay in the

United States and their ability to

apply to return once they were in

Mexico, and also used a misleading

form that failed to notify individuals

that taking voluntary departure

meant they cannot apply for relief

and lose the procedural protections

that apply in court. Named plaintiffs

in this lawsuit include:

Isidora Lopez-Venegas, the

mother of an autistic U.S. citizen

son, who was arrested by CBP and

told that if she refused to sign for

voluntary departure, she could be

detained for several months, thereby

separating her from her autistic son.

The agents further misinformed Ms.

tried to cross back to the United States for Thanksgiving

but was arrested, detained, and driven to Arizona to be

summarily deported. He now works for a call center in

Tijuana, Mexico, and is applying for a U visa from Mexico

(he was the victim of a violent hate crime prior to his

deportation). “I would love to go back,” he said. “My whole

family is there.”369

Laura S. came to the United States from Mexico as a

teenager with her young son and was murdered soon

after her deportation to Mexico. According to a complaint

filed on behalf of her mother and children, Laura had two

children with an increasingly violent and abusive man

while living in Texas. Laura was able to get a protection

order against him from local police in Texas, but he

continued to threaten her until he returned to his native

town in Mexico, according to Laura’s family’s attorney, and

joined a drug cartel. In June 2009, several years after Laura

first came to the United States, Laura and her cousin were

stopped by police for an alleged traffic violation; Laura

was turned over to DHS. Laura begged the officers not to

deport her, as she feared being attacked by her ex-partner

Yadira Felix, with her grandmother Candelaria Felix, at their home in San Diego,

California. Yadira, who has mental disabilities, was effectively kidnapped by CBP and

left in Mexico.





b. Administrative Removal Under 238b

Individuals all over the United States can also be deported

without a hearing if they have particular criminal

convictions. Under the INA, undocumented individuals

who are convicted of an aggravated felony373 or a crime

involving moral turpitude374 are subject to administrative

removal, a summary removal procedure that bypasses the

courtroom and allows immigration officers to determine

that a person has been convicted of a qualifying offense

and is removable. The determination that a particular

conviction actually is an aggravated felony can require

complex legal analysis and attention to the changing state

of the law; it is a determination that can be erroneously

made even by immigration judges but is exponentially

more prone to error when undertaken by someone without

legal training. Despite the limitations of a 238b proceeding,

there are still some required safeguards that advocates

report are too often ignored.

In 1990, when he was eight months old, Ricardo S. A. came

to the United States from Mexico with his family. The next

time he left the United States was at his deportation at age

20, in 2009. Growing up in Nevada, Ricardo completed the

eleventh grade, played soccer for his high school, worked at

night, and had planned to marry his U.S. citizen girlfriend.

But when he was 19, Ricardo pleaded guilty to conspiracy

to commit burglary, a misdemeanor for which he spent two

days in jail and was originally sentenced to probation and a

suspended sentence of one year.

On September 16, 2009, a few months after his conviction,

Ricardo checked in with his probation officer and was

arrested by immigration officials. “I explained to them right

away about my case. I said, ‘Let me see an immigration

judge,’” Ricardo recalls.375 In fact, Ricardo did have the

right to see an immigration judge and to have a regular

immigration hearing, which would have allowed him to

make claims to remain in the United States or at least to

avoid a formal removal order. Instead, ICE issued a Notice

of Intent to Issue a Final Administrative Removal Order and

claimed that Ricardo was convicted of an aggravated felony.

At the time of his deportation, Ricardo’s misdemeanor

conviction was clearly not an aggravated felony under

Ninth Circuit law, which governed his proceedings.

Lopez-Venegas that it would be easier for her to

obtain legal status through her son once in Mexico;

in fact, her son’s age made this impossible for years

to come. She and her U.S. citizen son had to leave

the United States after she was coerced into signing

the form.

Yadira Felix, appearing in the case through her

grandmother, Candelaria Felix, has significant

cognitive disabilities. Yadira Felix had lived in the

United States for over 20 years when Border Patrol

agents approached her at a bus stop, drove her to

the U.S.-Mexico border, and pushed her, crying,

across to Mexico.

Marta Mendoza, appearing in the case through one

of her six U.S. citizen daughters, Patricia Armenta,

has bipolar disorder, as does her 16-year-old son,

who depends on Ms. Mendoza for support. She had

lived in the United States for over 30 years when

police arrested her on suspicion of shoplifting and

took her to a jail where ICE officers coerced her into

signing the voluntary departure form.

Ana Maria Dueñas, a mother and grandmother

of U.S. citizens, who was arrested by CBP while

waiting for a bus in California. A Border Patrol

agent, knowing she spoke only Spanish, provided

her with a voluntary departure form in English;

incorrectly told her that she could not obtain relief

from an immigration judge in the United States, but

could easily and quickly obtain legal status once in

Mexico; said she would be detained for months if

she did not sign the form; and failed to allow her to

speak with an attorney or the Mexican Consulate.

In August 2014, the ACLU reached a settlement with

DHS, which allowed the named plaintiffs to return to

the United States and their families and required DHS to

make changes to its practices in using voluntary return

in Southern California. However, the CBP practices and

misconduct documented in Southern California are similar

to those reported by immigration attorneys and non-

citizens coerced to accept voluntary return in other parts of

the country.





family while they are unable to leave the United States

while they apply for status.378

Jose Gonzalez-Segundo came to the United States from

Mexico in the 1960s as a young child; he has five U.S.

citizen children, all born in Texas. From the third grade,

Jose worked as a fruit picker alongside his mother and

never learned to write in English or Spanish. In 2001,

Mr. Gonzalez-Segundo was convicted of possession of a

controlled substance, which, at the time, was considered an

aggravated felony in the Fifth Circuit.379 While in prison,

Mr. Gonzalez-Segundo was interviewed by an immigration

officer in a mixture of Spanish and English, as the officer

spoke limited Spanish. Mr. Gonzalez-Segundo later testified

that the officer gave him only one of the two required pages

and told him to sign it in order to be released. He could not

read or understand the pages, nor did the officer translate

them for him. He was deported to Mexico, which he had

not returned to in more than 35 years.380

In both these cases, individuals in criminal custody relied

upon ICE officers to make a complex legal determination

and also to educate them on their rights. The threshold

question as to whether a person was convicted of an

aggravated felony and can even be processed through

administrative removal (238b) is complex, and given the

complexity and the volatility of the law on what constitutes

an aggravated felony, this high-stakes question should

not be delegated to an immigration enforcement officer.

But the procedure is also problematic because it denies

individuals the opportunity to apply for most forms of

relief, and takes place while the individual is in criminal

custody and without information on his or her rights in the

immigration system.

Placement in 238b is not mandatory; a DHS officer

can choose to place the individual in regular court

proceedings where an immigration judge can undertake

the more complex analysis as to whether a person has a

conviction for an aggravated felony and whether he or she

is nonetheless eligible for relief. For many non-citizens in

238b proceedings, the only available relief they will hear

about is withholding of removal or CAT if the individual

fears being removed to his or her country of origin. But

that is not the only form of relief the individual may be

eligible for: he or she may be eligible for a U or T visa or

However, alone in detention, without an attorney’s

assistance, 20-year-old Ricardo did not know what his

rights were or that he had not been convicted of an

“aggravated felony.” Initially, Ricardo insisted that he

wanted to see a judge and checked off the box on the

notice issued by ICE, indicating that he wanted to contest

the removal order. “I explained I wanted to fight [my

case],” recalls Ricardo. “The [ICE] officer said, ‘You have

no chance.’ It was my first real time incarcerated and I

was scared. I signed because she told me you don’t have a

chance to win because of your crime. …. She made it seem

like I was wasting my time, and I would be incarcerated for

no reason.”376 Having been convinced by the ICE officer—

who was not a lawyer or a judge—that his crime was an

aggravated felony and appeal was futile, Ricardo withdrew

his request for review on September 21, 2009.

However, after learning that Ricardo had been ordered

deported because of his conviction, on September 29, 2009,

Ricardo’s defense attorney filed a motion for resentencing

to lessen Ricardo’s sentence so that it would indisputably be

recognized that his crime was not an aggravated felony.377

But on September 30, 2009, Ricardo was deported back to

Mexico, where he had no immediate family and which he

had no memory of, having left as a baby. The Nevada state

court subsequently reduced Ricardo’s sentence to less than

a year and noted that it might even have recommended

diversion, if the immigration consequences had been

presented at that time. All this came too late for Ricardo,

who had been deported and remains separated from his

Ricardo came to the United States as a baby but was deported back to Mexico when an ICE officer incorrectly determined he had committed an “aggravated felony.”





important procedural rights and many more opportunities

to apply for relief from removal. It is unclear how often

immigration officers use this authority, but there are

certainly many cases where officers do not use their

discretion to refer someone to a full hearing and instead

condemn them to immediate deportation, which can have

irreparable consequences for the individual and his or her

family in the United States.

may not even be removable. But while immigration officers

in 238b are required to refer a person who claims fear

of removal for a reasonable fear interview, they are not

required to inform the individual of what other forms of

relief he or she is entitled to.

In 1989, Ofelia H. came to the United States, where she

raised her children and later adopted a U.S. citizen whose

parents had been murdered (while also raising two of her

grandchildren.) For years she worked at a factory using

what she believed was a fake Social Security number so she

could work and support her family. In 2007, it emerged

that the Social Security number was real; she served eight

months for identity theft. At the end of her sentence, she

was transferred to immigration custody. “I was right at

the exit of the jail and my daughter was waiting for me—I

could see her,” she recalls. “Immigration handcuffed me

without telling me why.” Ofelia was taken to a different

immigration detention facility, where she was processed

through administrative removal (238b) as an “aggravated

felon” and deported. The forms were in English and Ofelia

does not recall being given any information about her

rights. After her deportation, her adopted daughter, then

four years old, joined her in Mexico but could not adjust

to life there; Ofelia and her adopted daughter therefore

returned to the United States in 2008. Even at the time

of her deportation, Ofelia was in fact eligible for a U visa

after being attacked with a deadly weapon while working

at an apartment complex, but without a lawyer and any

assistance she was unable to apply and attempt to stop her

removal. She is now working with an attorney and in the

process of applying for a visa.

Although reliance on these summary removal tools

has become routine—even the default, in many

circumstances—immigration officers still have discretion

to place a person in formal removal proceedings before a

judge. In cases where the person has obvious equities—

long residence and/or family in the United States, for

example, or where it may be difficult to determine whether

the individual has a claim (e.g., an individual with a

severe mental disability, someone with a minor conviction

that may or may not be an aggravated felony, etc.)—it

makes sense to allow them to present their case in court

where a judge can make those critical determinations.

Placing a person in formal removal proceedings triggers





and may have strong claims to protection under human

rights law.382

In the past few years, the number of children arriving in

the United States to seek protection (and, in some cases, to

be taken care of by family) has risen dramatically, with an

estimated 90,000 arriving in the United States in FY 2014.383

Recognizing the swelling numbers of children arriving

alone and the violence they are fleeing, President Barack

Obama declared the unfolding crisis to be a humanitarian

situation; 384 but at the same time, the response from the

Obama administration and many in Congress has been to

seek to dismantle, rather than reinforce, protections for

non-citizen children seeking help in the United States.

Arrival at the U.S. border is not the end of the story. While

Central American children are supposed to be brought

before a judge, in some circumstances they are instead

removed without a hearing, in violation of federal law,385

and seemingly without consideration for the humanitarian

catastrophe into which they are being returned. For

Mexican children, this is the status quo: unless (and even

if) they meet additional screening criteria, the majority of

Mexican children are quickly returned to Mexico without

the opportunity to see a judge. As

such, these children are often treated

not as kids in need of protection, but

as a problem to be removed.

1. Legal BackgroundFor years, unaccompanied children386

were regularly turned away at the U.S.

border; if they did make it inside the

United States and were apprehended

by immigration officers, they were

detained by the Immigration and

Naturalization Service387 in adult

detention facilities.388 In 1997, after

over a decade of litigation, the Flores

v. Reno settlement agreement (“the

Flores settlement”) created nationwide

standards on the treatment,

detention, and release of children.389

The agreement requires the federal

D. CHILDREN ARRIVING ALONE“We are talking about large numbers of children,

without their parents, who have arrived at our

border—hungry, thirsty, exhausted, scared

and vulnerable. How we treat the children, in

particular, is a reflection of our laws and our

values.”

—Secretary Jeh C. Johnson, U.S. Department of

Homeland Security381

Being arrested, detained, interrogated, and deported by

an immigration officer can be a harrowing experience.

For children who come to the United States alone after

a dangerous journey during which many are victimized,

the need for additional protections when they arrive

is acute. In recent years, the disastrous human rights

situation in Central America—in Honduras, Guatemala,

and El Salvador, in particular—has been reflected in the

escalating number of children arriving in the United States.

As recently documented by the United Nations High

Commissioner for Refugees, the majority of these children

are escaping violence, lawlessness, threats, and extortion,

A child and her family in their gang-plagued neighborhood in Tegucigalpa, Honduras.

Spencer Platt/Getty





agreement,397 by taking kids out of adult detention facilities

and providing them with necessary social services, this

system is significantly more rights-protective than the

previous system and the existing adult system.

These humanitarian protections for children are necessary

in and of themselves, given children’s inherent vulnerability

and susceptibility to abuse and coercion.398 But these

protections have also proved instrumental in safeguarding

children’s legal rights in court. Detention has a strong

coercive effect, so removing children from detention as

soon as possible is important, not just to avoid unnecessary

harm and trauma, but also to protect their rights to seek

relief.

The experiences of Kevin G. and his brother Javier

illustrate the negative impact of detention on a young

non-citizen’s ability to pursue asylum, even when they

have a bona fide claim. Kevin G. fled gang violence in

Honduras, leaving home for the United States at age 16

and traveling by himself for most of the journey. “I would

not want my brothers to travel like that; I don’t want them

to go through what I did,” he told the ACLU.399 He was

arrested crossing into the United States and, as a minor

from Central America, placed in removal proceedings

and housed in a shelter in Los Angeles. His brother Javier,

who had been attacked with a machete by a gang—the

same gang that threatened Kevin—when he refused to

join them and participate in murders, followed Kevin in

2012; Javier was 23. As an adult, Javier was placed in a

detention center where he spent several months waiting

for an interview with an asylum officer. Finally, Kevin says,

his brother decided to accept deportation rather than wait

government to provide unaccompanied children with basic

necessities such as drinking water and medical assistance;

to keep children separated from non-related adults; and

to release children from immigration detention as soon

as possible. If no release option is immediately available,

children must be placed promptly in the “least restrictive

setting” that is “appropriate to the minor’s age and special

needs.”390

The Flores settlement marked the beginning of the U.S.

government’s recognition (now unfortunately in decline)

that unaccompanied children are entitled to due process

rights. In particular, all unaccompanied children must

be given (1) Form I-770, Notice of Rights and Final

Disposition, which informs children of their rights

and options; (2) a list of free legal services; and (3) an

explanation of the right to judicial review in court.391 A

subsequent lawsuit, Perez-Funez v. INS, also established that

unaccompanied children must be advised by DHS of their

right to a hearing before they are presented with a voluntary

departure form.392 Children from Mexico and Canada must

be given the opportunity to consult with an adult friend

or relative, or a legal services provider, before accepting

voluntary departure; this consultation is a mandatory

prerequisite for children from countries other than Mexico

and Canada.393 Once in immigration court, children can

apply for several forms of relief from removal, including

asylum and Special Immigrant Juvenile (SIJ) Status.394

In the years following Flores and Perez-Funez, Congress

developed additional safeguards for unaccompanied

children apprehended and detained in the United States.

Notably, the William Wilberforce Trafficking Victims

Protection Reauthorization Act of 2008 codified that

children arriving alone in the United States cannot be

expelled through expedited removal,395 and the Homeland

Security Act of 2002 transferred responsibility for

unaccompanied children from the INS to the Office of

Refugee Resettlement (“ORR”) within the U.S. Department

of Health & Human Services (and thus outside of the

newly formed Department of Homeland Security).396 This

move provided additional protections for children awaiting

an immigration hearing. Although human rights advocates

have continuously found that the agencies that apprehend

kids (DHS) and hold them during their hearings (ORR)

have failed to fully implement the Flores settlement

Sixty-four percent of Mexican children coming alone to the United States have international protection claims according to the UNHCR.





either due to their appearance or their own misstatements.

For example, Maria, a 15-year-old Mexican girl deported

to Agua Prieta, Mexico, was trying to reunite with her

father in the United States when she was apprehended by

Border Patrol; she told the officers that she was 19 years old

“because I thought they would deport me easier and quicker

[as an adult].”404 Mexican immigration staff in Nogales,

Sonora, Mexico, reported that they had frequently seen kids

who were presumed to be adults while in CBP custody.405

In 2012, attorney Aryah Somers interviewed

unaccompanied children who had been repatriated to

Guatemala. In one three-week observation period alone,

Somers found that 34 of the 61 unaccompanied children

who were repatriated had been classified as adults and,

consequently, had been detained in adult detention

facilities in the United States; two of those children, Ms.

Somers said, “were immediately identified as potentially

eligible for Special Immigrant Juvenile Status.”406 Some

children claimed to be 18 or older out of “fear, pressure

from immigration officers, misinformation from the coyote

or pollero that children are treated worse than adults in the

U.S., and a belief that they would be detained until their

18th birthdays.”407 Misidentified as adults, these children

were not only detained in adult facilities, in violation of

federal law, but were also deprived of the opportunity to

apply for humanitarian protections and other forms of

relief from deportation, or even to see a judge or consult

with a lawyer.408

It is unclear to what extent CBP officers are trained in

the significance of the procedural protections in place

in detention; Kevin says that soon after Javier returned to

Honduras, he was murdered by the gang he had originally

fled.400

The safeguards that the Flores settlement, Perez-Funez, and

the Homeland Security Act initiated for unaccompanied

children—diversion from detention and the right to a

hearing—are essential to ensure that children like Kevin are

able to present their cases and defend their rights. But these

protections are triggered only when (1) a child is correctly

identified as an unaccompanied minor and (2) the border

officers who apprehend and question the child follow

the law and ensure he or she is referred to the alternate

ORR system and placed in formal removal proceedings.

Unfortunately, this is not always the case.

2. Accessing the Protections of the SystemWhile the ORR system is designed to be child-centered,

the Border Patrol stations are not.401 Even as decades of

litigation eventually removed children from long-term

detention in adult facilities, children continue to face

abuse and threats while in short-term adult detention. In

June 2014, a complaint to the DHS Office for Civil Rights

and Civil Liberties and the Office of Inspector General

(“CRCL/OIG complaint”), filed by several organizations

including the ACLU, documented 116 cases of abuse

by CBP against children, ages 5 through 17, including

shackling, rape, death threats, and denial of medical care.402

The investigation is ongoing, but the complaints raised

are not new.403 It should come as no surprise, then, that

some children, like adults, may forfeit their rights while in

CBP custody—for example, by saying they are adults, have

no fear of being deported, or want to be returned to their

country of origin. In such an environment, it is unlikely

that children would feel comfortable disclosing sensitive

information about their lives, their families, or the violence

they have fled.

The protections for children traveling alone are not

automatically activated; often, children must claim those

protections by volunteering personal information about

themselves—starting with their age—without knowing

what the benefits or consequences are of providing that

information. Some children will be misidentified as adults,

Somers found 56 percent of repatriated Guatemalan children were misidentified as adults, detained in adult U.S. facilities, and deported without a hearing.





in the United States for three weeks when he was arrested

by Border Patrol officers while walking near a checkpoint

in Brownsville, Texas.411 He says he repeatedly asked if he

could speak to a lawyer and that he wanted to see a judge.

Deyvin says the officers told him “it was impossible that a

judge or lawyer could do anything for me.”412

While legal developments since the 1980s ensure that

many children will be referred for a hearing, regardless

of what happens in their interview with border officials,

for Mexican children this initial interaction with Border

Patrol is the most consequential. Unlike children from

“noncontiguous countries,”413 Mexican children are not

automatically referred to an immigration judge and can be

returned “voluntarily” upon apprehension in the border

area. For Mexican children, then, this first interaction with

border officials can make a decisive difference, leading

to either the chance to be heard in court or immediate

repatriation.

for children or why a valid waiver of those rights is so

significant. But in some cases, it appears that border

officials are deliberately interfering with those rights.

For example, according to the CRCL/OIG complaint,

CBP accused a 16-year-old of lying about his age, then

strip-searched him and threatened that he would be made

“the wife” of a male detainee for lying about his age.409 In

another case documented in the same complaint, CBP

officials confiscated a 16-year-old’s birth certificate, and

instead of immediately referring him to ORR, attempted

to force him to sign a form that he believes was for his

deportation; when the child attempted to read the form,

“officials tore up the document, offered a new one, and

again told him to sign.”410

Even when children are properly identified as minors

and specifically request to see a judge, they are not always

referred into ORR care and to the immigration court for

a hearing. Deyvin S., a teenager from Honduras, had been

A Border Patrol agent with Alejandro, 8, who traveled by himself across the Rio Grande.

Jennifer Whitney/The New York Times/Redux





met, and the CBP officer is convinced the child has no

potential asylum or trafficking claim and also has the

capacity to consent to his or her return to Mexico, may

the unaccompanied Mexican child be repatriated without

a hearing.417 This places considerable authority in the

hands of the CBP officer, who must screen the child and

determine whether or not he or she can be removed. To

ensure that eligible Mexican children are able to benefit

from the TVPRA’s protections, the statute requires that

“[a]ll Federal personnel . . . who have substantive contact

with unaccompanied alien children” must receive

“specialized training,” including training in “identifying

children who are victims of severe forms of trafficking

in persons, and children for whom asylum or special

immigrant relief may be appropriate.”418 But fundamentally,

the TVPRA as written presumes that an unaccompanied

Mexican child cannot be immediately returned to Mexico

and is in a vulnerable position; the required screening

places the burden on the examining officer to determine

that a child can safely be repatriated and is able to

understand that decision. In practice, however, the burden

is on the child to speak up and be heard while in detention

and while being interviewed by a law enforcement officer.

For Mexican children, removal has become the default.

4. The TVPRA in PracticeWhen the TVPRA was introduced, advocates expected a

deluge of unaccompanied Mexican kids into temporary

shelters within the United States; in fact, this never

happened. According to CBP statistics on FY 2013

apprehensions, 17,240 Mexican unaccompanied children

were apprehended at the border;419 similarly, figures

from official Mexican immigration sources estimate that

in 2013, 14,078 Mexican unaccompanied children were

repatriated from the United States.420 And yet, during

the same time period, ORR reported only 740 Mexican

unaccompanied kids in its custody.421 This figure reflects

all Mexican children in ORR custody, including those

apprehended far from the border anywhere in the United

States, and so likely significantly overestimates the number

of Mexican unaccompanied children in ORR custody. Even

so, these figures suggest that the overwhelming majority of

Mexican children arriving alone—around 96 percent—are

turned around when CBP apprehends them at the border.

3. Mexican Children and the TVPRAMexican children are not exempt from the violence and

other international protection concerns that plague

children in Central America; a recent UNHCR study, which

included interviews with 102 unaccompanied Mexican

children, found that 64 percent had potential international

protection needs, particularly from violence and coercion

to assist smugglers.414 Similarly, Refugees International

recently recorded that in Mexico, violent activities such as

kidnappings and extortions are at “their highest levels in

more than 15 years,” and found that children in particular

have been victims of kidnapping, assassination, extortion,

and disappearances.415

In the years after the Flores settlement and the Homeland

Security Act of 2002, despite heightened safeguards for

unaccompanied kids, Mexican children continued to be

routinely turned around at the border, just like most adults,

without any evaluation of the risks they face if repatriated.

Partly in response to this ongoing problem, Congress

passed the William Wilberforce Trafficking Victims

Protection Reauthorization Act of 2008 (TVPRA), which

strengthened some of the Flores and HSA provisions on

children’s rights in custody while also adding additional

screening requirements for Mexican children.

The TVPRA requires that any border officer who

apprehends an unaccompanied Mexican child must

interview the child and confirm that he or she (i) is not a

potential victim or at risk of trafficking, (ii) has no possible

claim to asylum, and (iii) can (and does) voluntarily

agree to go back home.416 Only if all three criteria are

UNHCR found that most interviews involved “merely perfunctory questioning of potentially extremely painful and sensitive experiences for children.”





screening. Of the 11 Mexican unaccompanied children the

ACLU interviewed in Sonora, Mexico, ranging in age from

11 to 17, only one, Hector, said that he had been asked any

questions about his fear of returning to Mexico. Hector

recalls: “I asked if there was any benefit and the migra said,

‘No, there is probably no benefit. You just crossed through

the desert so you’re going to be deported.’”425 Brian, an

unaccompanied child from Nogales, Mexico, whose father

is in Tucson, said he had been trying to enter the United

States since age 14 but in his three attempts, he had never

been asked about his fear of returning to Mexico or if he

wanted to see a judge.426

Even when Mexican children attempt to explain their need

for protection, in at least some instances border officials

apparently refuse to believe them. For example, 16-year-old

M. E. is a Mexican girl who sought asylum in the United

States after her family received multiple death threats and

demands for money from a gang, which she believes led

to her brother’s disappearance in early 2014. M. E. recalls,

“Then they said that if we could not negotiate with money

we may as well buy bulletproof vests for the whole family

because they were going to kill us.”427 According to what

M. E. related to her attorney, and as explained in the CRCL/

OIG complaint, an immigration official asked M. E.,

“What right do you have to come to our country?” When

M. E. tried to explain the danger she fled, according to her

UNHCR has similarly estimated that

95.5 percent of Mexican children are

returned without seeing a judge.422

Thus, despite the additional

protections the TVPRA was supposed

to enable, Mexican unaccompanied

children continue to be turned away

from the United States. The additional

screening requirements operate

like a sieve, creating procedural and

substantive hurdles for Mexican

children to overcome before they can

get before an immigration judge and

win relief. At the substantive level,

under the TVPRA, a Mexican child’s

right to a hearing is triggered only

if he or she presents an asylum- or

trafficking-based claim, or if the

government chooses to pursue a

formal removal order (as opposed to voluntary return).

Other valid claims for relief will not get a Mexican child

arrested in the border zone into court. For example, Arturo,

a 15-year-old from Tabasco, Mexico, was attempting to

come to the United States and reunite with his mother

and two U.S. citizen siblings when he was caught by DHS

officers in Arizona. His father had abandoned him in

Mexico: “There is no reason for me to stay [in Mexico]

if my dad doesn’t want me here.”423 Because he had been

abandoned by at least one parent, Arturo might have

qualified for Special Immigrant Juvenile status (SIJ) and,

if successful in court, been able to remain in the United

States and one day adjust his status. But even if Arturo

were eligible for SIJ, he would not have the opportunity to

present that claim because it does not trigger a right to go

to court and be heard under the TVPRA.424 By contrast,

non-Mexican children arrested at the border with the exact

same claims are not pre-screened by CBP and will have the

opportunity to raise any claim for relief in their removal

proceeding. As such, the TVPRA screening effectively

narrows the grounds of eligibility for unaccompanied

Mexican children to enter and remain in the United States.

Yet even children who are eligible under the TVPRA to

enter the country and see a judge are routinely denied that

opportunity when CBP officers fail to conduct the TVPRA

Tijuana, Mexico. Stenciled on the Mexico side of the fence between the United States

and Mexico are families being lifted to freedom by balloons.

Sam Frost





afraid or hesitant to volunteer information to an armed

U.S. law enforcement officer, while in detention and

without any assistance (and often without an interpreter), is

unsurprising. And yet, this is the context in which children,

arriving alone, are required to vindicate their rights or else,

if Mexican, be quickly deported. Responding to proposals to

put Central American children through the same screening

and summary removal system as Mexican children are,

Lawrence Downes of The New York Times wrote,

There are several reasons why this is a terrible

idea. It starts with handing the responsibility for

humanitarian interviews to a law-enforcement

agent with a badge and a gun, whose main job is to

catch and deport illegal border crossers, and who

may not even speak Spanish. This is not the person

you want interviewing a traumatized 15-year-old

Honduran girl to find out whether the abuse

she endured at home or the rape she suffered en

route qualifies her for protection in the United

States. . . . It would be criminal to subject Central

American refugees to the same system. They need

lawyers and victim advocates, clean, safe shelter

and the chance to be heard in court.436

In addition to ACLU interviews with unaccompanied children

conducted in Sonora, Mexico, two thorough investigations by

the UNHCR and Appleseed into TVPRA compliance across

the entire southern U.S. border demonstrated that screening

failures are widespread and routine.

The 2013 UNHCR investigation included in-person

observation of TVPRA interviews at four locations and

was conducted at the request of the federal government.

According to this report, 95.5 percent of unaccompanied

Mexican children apprehended by CBP are returned across

the border—not because they did not have claims but

because “CBP’s practices strongly suggest the presumption

of an absence of protection needs for Mexican UAC

[unaccompanied children].”437 This is the exact opposite of

what the TVPRA was designed to do—namely, to put the

burden on U.S. immigration officials to show that a child

would not be in danger if removed from the United States.

CBP is unable to complete this mandate, however, as

most agents appear unfamiliar with many of the issues

statement and the CRCL/OIG complaint, “the official told

her she would not get through with her pinche mentira

[fucking lie] because he knew how to detect a liar like

her.”428 M. E. continually returned to the U.S. border to seek

asylum and was returned to Mexico multiple times before

she was ultimately allowed into the United States and

transferred to an ORR shelter.429

Beyond requiring affirmative screening for asylum and

trafficking claims, the TVPRA requires that immigration

officials ensure that children voluntarily choose to go

back to the Mexico, but children interviewed by the

ACLU did not appear to have been subject to this inquiry.

Jesús, a 16-year-old unaccompanied Mexican child, said,

“They just put [the form] in our face and said sign. They

wouldn’t give us any information. . . . They didn’t give us

[the] opportunity to ask anything; they just called us up to

sign.”430 Hiram, 11 years old, and his brother Pepe, 16 years

old, said they had not been asked anything except their

age when Border Patrol agents detained them.431 Federal

regulations and the Flores settlement further require that

any child under the age of 14 be read the I-770 form in a

language that he or she understands.432 This did not appear

to take place for Hiram.

In interviews conducted by the ACLU, it was clear that the

children had no idea what rights—if any—they had, or

what was happening in the process. Similarly, in interviews

by the Center for Public Policy Priorities (CPPP) with

children who had been turned away at the U.S. border, some

children did not even understand that they had been in

the United States when arrested and removed.433 Mexican

immigration staff told the ACLU that in some cases, Central

American children claim to be Mexican, not knowing

that there are additional protections in place for Central

American children at the moment.434 In its study, CPPP

regularly encountered such children in Mexican shelters;

one child, Daniel, had fled gang violence in Honduras only

to be quickly turned around and sent to Mexico by CBP

without being asked about his fear of returning.435

In the absence of a designated professional advocating for

the child in CBP custody or providing any meaningful

information to the child about their rights, the burden is

on the child, who has just made a difficult and dangerous

journey, to volunteer information. That children would be





said they had ever identified a child trafficking victim or

one at risk of trafficking.”440 Rather, the UNHCR found,

some officers expressed concern that they could not refer

these children, who may have been coerced by gangs to

participate as guides in the human trafficking industry, for

criminal prosecution.441

From 2009 to 2011, Appleseed interviewed children on

both sides of the U.S.-Mexico border, as well as U.S.

and Mexican government officers, and found similarly

that the majority of Mexican children arriving alone are

quickly returned due to significant failures in the TVPRA

screening.442 Appleseed found that the few unaccompanied

Mexican children who do make it into the ORR system are

they are screening for—risk of trafficking, asylum claims,

and ability or inability to consent to voluntary return.

The mandatory screening forms, the UNHCR found,

were not only inscrutable to the children, but also to the

officers doing the questioning, often in public settings and

sometimes without an interpreter. Overall, the investigation

concluded, “The majority of the interviews observed

by UNHCR involved what was merely perfunctory

questioning of potentially extremely painful and sensitive

experiences for the children. And in the remainder, the

questioning, or lack of questioning, was poorly executed.”438

The “virtual automatic voluntary return” of Mexican

unaccompanied children, the UNHCR found, was not

due to officer callousness but a lack

of education and systematic failures

to understand and implement the

TVPRA screening. According to the

UNHCR report, CBP officers failed

to ask several (or sometimes any)

of the required screening questions;

sometimes conducted an interview

without an interpreter; by default,

interviewed children in public places

about sensitive issues; had no training

in child-sensitive interviewing

techniques; and did not understand

the legal background and rationale for

the screening activities. In some cases,

children were told to sign forms that

had already been filled out.439

Perhaps most disturbingly, the

investigation found that CBP

officers do not understand what

human trafficking means and are

unable to identify child victims of

human trafficking—which includes

recruitment and coerced participation

in the human trafficking industry.

Although the U.S. Department of

State recognized Mexico as one of the

top countries of origin for victims

of human trafficking in FY 2012,

according to the UNHCR, “None

of the agents or officers interviewed

Mexican immigration office on the Mexican side of the border with Nogales, Arizona. Mexicans deported from the United States to Nogales, Mexico, are interviewed by Mexican immigration officers who assist them in their journey on to their hometown. Unaccompanied Mexican children are briefly held here before being transferred to shelters, which contact their parents or guardians to come and pick them up.





system, Mexican children face the same risks as Central

American children but are quickly deported: “A lot of

unaccompanied minors from Mexico share the same

conditions of risk, of already being victims. They should be

given a chance to prove that.”447

It is unclear what questions CBP officials are asking kids

apprehended at the border—and what questions are actually

required, under the TVPRA or by CBP policy, to effectuate

the screening. Indeed, DHS has not promulgated regulations

on the types of questions that should be included to screen

for a trafficking or asylum claim, and it does not appear

that DHS has developed any specific guidelines on the

issue either.448 The UNHCR and Appleseed both found,

however, that even the minimal forms that exist to screen

for trafficking or asylum claims are either not used or are so

formulaic and incomprehensible to a child that their utility

is marginal at best.449

In addition to these predictable inconsistencies in

screenings and referrals, DHS lacks regulations on how

to assess whether a decision to return to Mexico and

withdraw the application for admission is “independent” or

voluntary—or whether the child, who may be as young as

four years old, has the capacity to make that decision alone.

Explaining this prong of the TVPRA, one reporter noted

that the question has been reduced to this: “[C]an they

decide on their own to turn around and go back home after

making a long, scary journey by themselves? If the Border

Patrol agent thinks the answer is yes, off they go.”450 Wendy

Cervantes, Vice President of Immigration and Child Rights

Policy at First Focus, observes, “[M]ost people would argue

that no child should make that decision.”451

The existing regulations do require that all unaccompanied

children, including Mexican children, be explained

their rights and provided with a Notice of Rights and

Disposition (Form I-770).452 Mexican children are

supposed to be given the opportunity to consult with

a relative or free legal services provider prior to even

being given the voluntary departure form453; in practice,

this opportunity is often illusory. None of the children

interviewed by the ACLU recalled being asked if they

wanted to use the phone to call their families or to seek

help from a lawyer; none said the I-770 form was read or

explained to them; and while one was told he might be able

children caught in the interior of the United States who

cannot automatically be repatriated.443 Mexican children

at the border, however, are inconsistently and inadequately

screened under the TVPRA:

Roughly half of the children we interviewed

[…] were not asked any questions that might

elicit information about whether they have

a credible fear of persecution upon return.

Likewise, approximately half of the children

stated that they were not asked any questions

that would touch upon the trafficking indicators

set out in the form. … Even though Form I-770

explicitly states that “no [minor] can be offered or

permitted to depart voluntarily from the United

States except after having been given the notice

[of their rights],” approximately three-quarters

of the children we interviewed […] stated that

they were not informed of their rights. Notably,

many children stated that they were never asked

whether they wanted voluntary departure; they

were simply told that they would be returning to

Mexico.444

Mexican immigration officials in Sonora, Mexico,

told the ACLU that while they see approximately 20

unaccompanied children deported to Nogales every day,

it is extremely rare to find a child who has been before a

judge.445 That Mexican children are rarely referred for a

formal hearing does not mean that these children have no

claims to relief. One Mexican immigration official who sees

unaccompanied kids every day observed, “A lot of [these

children] should be asking for asylum in the United States;

they’ve been abused before.”446 Dr. Alejandra Castañeda,

an investigator at the Mexican think tank El Colegio de la

Frontera Norte, similarly observed that under the current

“A lot of [these children] should be asking for asylum in the United States; they’ve been abused before.”





“Informed consent” in this context has been reduced to

a set of mechanical questions on a form that children

interviewed were not given the chance to review, and which

Appleseed found to be anyway facially inadequate.455 The

whole rationale behind the TVPRA was to interrupt the

practice of immediately returning Mexican children and

to provide procedures that would ensure these children

were screened for and made aware of their rights; instead, it

appears that the TVPRA, as implemented by CBP, has done

neither. Since the TVPRA went into effect in March 2009,

Appleseed observes, Form 93 and the short accompanying

memo constitute, to date, “the only significant change in

practice adopted by the CBP in response to the TVPRA.”456

Nonetheless, in Appleseed’s assessment, “[n]either the

memo nor the form itself could be characterized as

‘specialized training’ that would equip CBP officers to deal

with and screen detained Mexican minors. Senior CBP

officials do not contend otherwise.”457

to see a judge, none were told that there were options for

them except to return to Mexico.

CBP officers are supposed to use Form 93, a screening

form to determine if the child is a potential trafficking

victim or has an asylum claim. Appleseed notes this form

is rarely used by CBP officers, but even when it is used,

the form questions are formulaic and are not designed to

help the agent draw out the details and history necessary

to determine whether the child has a claim.454 The form

includes no guidance or test for whether the child has the

capacity to accept voluntary return, as required under the

TVPRA. Only one child interviewed by the ACLU recalled

being asked anything except for their name and, in some

cases, their age, and while part of this may be attributable to

the language barriers, it is also likely that the nature of the

questioning—when and if conducted—did not suggest to

the child that this was an opportunity to share their story.

An undocumented immigrant apprehended in the desert near the U.S.-Mexico border is processed before being transported to a detention center on June 1, 2010, near Sasabe, Arizona.

Scott Olson/Getty





environment would divulge sensitive information

that would indicate that they had been trafficked or

otherwise feared abuse. Indeed, one CBP agent we

spoke with told us that he does not expect Mexican

minors to trust him or his colleagues in this “police

station” environment.460

This interrogation is the only chance a Mexican child has

to get into the immigration court system and be heard. But

for many children, this experience is too intimidating to

help them. While CBP questioning appears too short and

automated to elicit or provide any meaningful information,

the children interviewed by the ACLU all said they just

wanted to get out of detention. Once returned to Mexico,

they talked about being yelled at, kept in freezing and dirty

cells that they were forced to clean, and then, right before

their removal, told to sign a form (in English) they did

not understand before being bussed back to Mexico. They

described brief interviews during which most were asked

only their names and age, with no real questions that could

determine whether they had claims that the TVPRA was

designed to screen for, or that would suggest the decision to

return to Mexico was voluntary. The escalating number of

children arriving alone and passing through CBP detention

may exacerbate the current systemic failures, given the

strain on resources and focus on non-Mexican arrivals. But

the result is that an increasing number of children who do

have claims to enter the United States have been and will be

turned away and returned to danger.

The inadequacies of the forms and formal procedures

place additional responsibility on the individual border

officer to adequately and sensitively question each child.

Although the statute requires specialized training for

officers interviewing unaccompanied children, it is unclear

what that training entails or how regularly it is provided.

The training materials and any related guidance is not

publicly available, and although ACLU FOIAs requesting

this information have not yet been answered, responses to

similar requests by Appleseed demonstrated “no indication

of any specialized training.”458

Even where officers are attempting to conduct the

screening, many do not speak Spanish despite working

with a largely Spanish-speaking population. Most children

interviewed by the ACLU said the CBP officers spoke

only English and did not use an interpreter. None of the

unaccompanied children interviewed by the ACLU for this

report spoke any English at the time of their apprehension.

Two of the unaccompanied minors interviewed in Agua

Prieta, Mexico, spoke an indigenous language and knew

very little Spanish.459

* * *

For most Mexican children traveling alone, the closest they

get to the U.S. justice system is an interview with a CBP

officer and a night in a detention facility. It is unlikely that

children arriving alone and seeking protection have any

idea what their rights are, and their experience with CBP,

in many cases, is unlikely to encourage them to volunteer

traumatic or difficult facts about their experiences—even

when that information is the only key to getting into court.

After examining where CBP interrogates children,

Appleseed found that while the interview/interrogation

setup varied, in every location the environment was

uniformly distressing and antithetical to providing children

with security:

Everything about this experience tells these unac-

companied children that they are in a detention

center run by a powerful U.S. law enforcement

agency and that the alternative to repatriation

is to be “locked up” in the United States. It is

unreasonable to expect that most children in this





Attorney Len Saunders estimates that in his 12 years as

an attorney, he has seen four or five expedited removal

orders, out of hundreds, rescinded; when these orders

include a lifetime ban or other significant penalties, the

lack of review and reliance on a single officer’s sympathy is

particularly troubling: “It shouldn’t be so discretionary. . . .

There has to be more review. You can’t have one or two

officers deciding whether someone is going to get a lifetime

bar with no review and no appeal process.”461

Attorney Greg Boos, who has represented many individuals

who received expedited removal orders along the northern

U.S. border, notes that “there are some supervisors who are

more amenable to reviewing and recognizing the orders are

defective,” but in other cases, supervisors refuse to speak

with the individual getting an expedited removal order, and

after the fact, getting an order removed requires significant

advocacy.462 In one case, Mr. Boos represented actor Chad

Rook and was finally able to get Mr. Rock’s wrongful

expedited removal order rescinded after nine months

of advocacy. Mr. Rook had been in the United States for

auditions and the premiere of a television show he was in,

but upon his return to Canada, he was held for almost nine

hours at a port of entry, accused of working unlawfully in

the United States, charged with material fraud, and issued

an expedited removal order in 2013.463 The letter vacating

Mr. Rook’s removal order stated that it had been reviewed

as part of a “periodic review” but gave no further facts as to

why the order was rescinded or what facts were reviewed.464

Attorney Len Saunders similarly observes that some officers

are approachable and willing to discuss the circumstances

of an expedited removal order—although he has only

rarely seen an officer agree to rescind an order—but that

III. AFTER DEPORTATION: THE AFTERMATH OF AN UNFAIR REMOVAL ORDER

A. ERRONEOUS DEPORTATIONS AND THE LACK OF OVERSIGHTSummary expulsion procedures are extolled as a swift

means of removing people from the United States, but

speed can come at the expense of accuracy. While an

immigration officer can order a person deported in a

matter of minutes or hours, the effects of that deportation

order can last a lifetime. In most cases, a deportation

order—even an unlawful one—cannot be easily cured and

set aside. Some errors by DHS officers can be reviewed and

corrected (albeit at significant cost to the person seeking

review); for example, a U.S. citizen unlawfully deported

through expedited removal is entitled to judicial review.

But for many common errors—such as an officer’s failure

to refer an asylum seeker for a credible fear interview

or to verify that a person taking voluntary departure

understands the rights he or she is waiving and penalties

he or she accepts—there is no meaningful review before or

after deportation.

The lack of formal review matters because the internal or

informal avenues appear to be insufficient. When these

orders are issued at the border, there is little time for an

individual to get legal assistance and stop the process before

the order is finalized. Attorneys told the ACLU that getting

an expedited order rescinded by the issuing officer is rare,

even when an individual enlists an attorney and is able

to identify the officer who ordered him or her removed.

“You can’t have one or two officers deciding whether someone is going to get a lifetime bar with no review and no appeal process.”





hearing, in front of a judge, where evidence was presented,

contested, and weighed. In the absence of these safeguards,

removal orders issued by DHS officers—the same agency

that is arresting, detaining, charging, and deporting the

individual—may need more review and oversight both before

and after the order has been issued. Instead, these orders are

often shielded from judicial scrutiny by explicit restrictions

in federal law so that few errors can be scrutinized and

corrected by an independent judicial authority.469

While federal courts stress the “finality” of a deportation

order,470 for those deported without a hearing, this

focus on finality comes at the expense of basic fairness.

And however final the order may be legally, from the

perspective of a court deportation is not the final event

for the person ordered removed, as they continue to face

ongoing bars from reentering the United States and are

rendered ineligible for or deprived of status going forward.

As legal scholar Rachel Rosenbloom observes, “From the

perspective of the deportee, departure from the United

States is not the end of the story but rather the beginning.

An order of removal imposes an ongoing—potentially

lifetime—restriction on a deportee, depriving her of the

status she once held and barring her from reentering

new or untrained officers should not be allowed to issue

these orders absent strong evidence to support them.465

In Washington State, advocates note, additional review and

quality controls appear to have been introduced after CBP

Officer Joel Helle was convicted of assaulting a Canadian

teenager while off-duty.466 Subsequently, the Seattle CBP

field office undertook a review of the removal orders issued

by Mr. Helle, and the overall number of expedited removals

at that port of entry has plummeted.467 In the absence of a

notorious event and media attention, the same thorough

examination of expedited removal orders—which, along

the southern U.S. border, are routine—may be rare. But

attorneys around the country agree that the lack of internal

and external oversight and review is at the heart of the

problem. As attorney Cathy Potter in Texas observes, “The

real problem is too much power with too little review. . . .

You’re out and then you’re stuck.”468

* * *

Despite the speed and informality of these procedures,

summary removal orders are treated as just as final

and authoritative as a deportation arrived at after a full

Carlos S., whom the ACLU encountered on the beach in Tijuana, Mexico, looking across the fence to the United States and holding photos of his children. He is separated from his son and daughter, who are both U.S. citizens living in California.

Sam Frost





said I was deported for life. But that’s not going to happen.

I have two U.S. citizen kids.”473

Juan C. came to the United States 30 years ago as a teenager

and now has three U.S. citizen children. In 1991, he was

arrested for a DUI and was granted voluntary departure,

but he quickly returned to take care of his young kids. In

March 2014, Juan says, he was arrested for sleeping in the

street and deported without a hearing. Alone in a shelter in

Tijuana, Juan said, “I’m in the middle of nowhere. What am

I going to do?”474

There are individuals for whom deportation is not the

most traumatic experience in their lives and who are

able to rebuild and start a future in the countries they

left, rejoining the families they left behind. Guillermo

L., an employee at a migrant shelter in Reynosa, Mexico,

described how his deportation many years ago from

the United States, where he had no family, was not the

defining experience in his life; working in Mexico for

migrants to support their safety, it turns out, was. “At that

time, I wanted the American Dream. . . . But now, I want

to continue the mission here,” says Guillermo.475 But for

others, there is no closure from deportation, particularly

when it separates them from their families in the United

the United States.”471 Absent a

meaningful procedure by which

people can raise these defects

and have their rights restored,

some people will continue to risk

apprehension, detention, and

prosecution to be safe in the United

States and be with their families.

Many individuals interviewed by the

ACLU after their deportation said

they were the primary breadwinners

or caregivers for their family in the

United States; they told the ACLU

that accepting years of separation

from their families was simply not

an option. While some people do

attempt to reopen their cases or

apply for waivers and other forms

of permission to reenter the United

States, these options are not available

to everyone, can require considerable expense, and are

discretionary and thus not guaranteed. Even when a person

has the right to judicial review, once deported he or she

might not be able to get before a court, given both the

practical difficulties (of learning about rights one may have

had and collecting evidence within the available statute of

limitations for challenging an order) and some substantive

limitations on filing for review from abroad.472 Thus, many

individuals who have ties to the United States will continue

to attempt to return with or without authorization. In

returning without permission, these individuals face

prosecution and imprisonment for illegal reentry and

successive deportations with heightened consequences;

these are daunting penalties but not when compared with

separation from family.

Carlos S., who came to the United States from Mexico

when he was 14, was standing in Mexico, staring at the high

fence separating him from the United States and his family,

when he spoke to the ACLU. Eight months ago, Carlos says,

he was arrested for a traffic ticket and deported to Mexico;

since then, he has tried three times to return to his U.S.

citizen children. The first time, he said, “I wanted to see a

judge. The immigration officer said he guessed the judge

didn’t want to see me. . . . The last time, I signed a form—it

A migrant shelter in Reynosa, Mexico, provides services to individuals hoping to reach the United States or already deported at the U.S. border.





In some cases, individuals return to the United States

after a prior removal either because they do not know

they have a final deportation order since they did not see

a judge or because the consequences of returning were

never explained to them. Attorney Nancy Falgout observes,

“There are harsh, harsh consequences for coming back. But

people aren’t told about that.”479 Someone with multiple

removal orders may look like a priority for deportation,

but in some cases, the individuals who return may have

strong claims to be in the United States but never get the

opportunity either to make those claims or to unpack and

challenge the accumulating deportation orders. As attorney

Ken McGuire observed, these can be complicated cases,

but that does not mean the claims are not valid: “It is hard

to figure out if you have a claim—I don’t know how any

immigrant, especially one who doesn’t speak English, can

figure this stuff out. Without a lawyer who is well versed

in immigration law, you don’t stand a chance. If someone

has relief . . . by the time I’ve seen them, they have been

deported a couple of times, and undoing that is really

difficult.”480

As in other summary removal procedures, the informality

of the process belies the significance of the proceeding.

Enrique, who first came to the United States at age 13

after his father was murdered, has been deported and

prosecuted for illegal reentry on multiple occasions; all he

knows about his reinstated order is that there is a 20-year

ban on readmission: “They tell us that we have to sign [the

form]. It was in English; everything is in English. There

were things I understood and others I didn’t. You can’t ask

any questions—you just sign where they tell you to sign.”481

Marcos V. was deported from the United States with an in

absentia482 order and then was removed again at the border

when he tried to return to his six- and three-year-old U.S.

citizen children: “So much pain it brings to my heart, not

seeing them. . . . The forms were in English. They didn’t

give me time to understand them and they didn’t explain

the forms.”483

Attorney Ken McGuire observed that LPRs who were

previously erroneously deported based on an incorrect or

now invalid reading of the law are stripped of their status

but will come back to their families and probably get

reinstatement orders.484 However, the reinstatement process

does not provide a meaningful opportunity to explain the

States, and when those deported never had their removal

(and its reasons and consequences) explained to them.

B. REINSTATEMENT OF REMOVALWhen a person returns to the United States after

being deported without authorization, his or her prior

removal order is frequently “reinstated” with additional

consequences if he or she again attempts to enter the

United States. In FY 2013, 39 percent of individuals

removed from the United States were processed through

reinstatement, where their earlier orders of removal were

essentially reissued without further review.476 Individuals

who reentered illegally after April 1, 1997, after a prior

order are inadmissible and are not eligible to apply for a

waiver to reenter the United States for another 10 years

after their deportation.477

The reinstatement process, at the border in particular,

can be incredibly quick; the officer need only verify the

individual’s identity and their prior removal order and

ask about fear of returning to the country of origin. As

attorney Lance Curtright observes, “In reinstatement, you

get one ICE officer who is going to talk to people, and

there is basically no right to a lawyer, no record. Officers

tell them, ‘You need to sign this or you are going to jail.’ It

happens really fast.”478 The speed with which reinstatement

occurs means that some individuals, even if they have a

new claim to be in the United States or could challenge

their old removal order, will not get that opportunity

because they do not have the time and resources to get legal

assistance.

Due to the speed of reinstatement, individuals who have a new claim or could challenge their old order are quickly deported again.





false information. After ICE picked her up, she was gone and

deported to Mexico within 24 hours. Her sister Alex recalls,

“I called to check up on her case and the immigration officer

said, ‘There is nothing you can do for her because she signed

a voluntary departure back in 2003.’”490

One of the few claims a person can make after a prior

removal order is a claim to withholding of removal or

protection under the Convention Against Torture (CAT).

In the government’s view, non-citizens in the reinstatement

process are not eligible for asylum, so to claim protection

in the United States, they must meet a higher standard in

demonstrating their fear of persecution. If successful, they

are still not able to access many of the benefits of asylum.

Unlike asylees, they cannot petition to bring their children

and family to join them in safety in the United States,

and they cannot adjust their status to have permanent

protection here as a lawful permanent resident or,

eventually, as a U.S. citizen. But because fear of returning to

one’s country of origin is one of the few claims a non-

citizen can make in reinstatement proceedings, withholding

of removal and CAT remain important protections.

As legal scholar Shoba S. Wadhia observes, the significant

growth in the number of cases referred for withholding-

only proceedings—from 240 cases in 2009 to 2,269 cases in

2013—may suggest that DHS has improved its screening

of individuals with fear of persecution in reinstatement

or administrative removal proceedings.491 It might

also be reflective of the growth in reinstatements and

administrative removals, “which itself may be associated

with a change of policy by DHS, under which the

department will now throw into a speed removal program

people who might have ordinarily been issued a Notice to

Appear and placed in normal removal proceedings.”492

unlawfulness of their prior deportation: “A lot of these guys

come back because they don’t know how to live anywhere

else. We see reinstatements left and right, but how can you

unwind all of this in 24 hours?”485

The reinstatement statute not only permits the abbreviated

procedures that characterize all the summary removal

procedures in this report, but it also limits the relief a

person can apply for once they have a prior removal

order. Individuals with strong equities—ties to the United

States, a lack of criminal history, etc.—cannot apply for

discretionary relief such as cancellation of removal.

Pancho came to the United States when he was five years

old; when he was in middle school, he found out that he

was not a United States citizen like his brother. In 2007,

when he was 22 years old, he was arrested for driving

without a license, an offense that falls outside of ICE’s

explicit enforcement priorities,486 and eventually took

voluntary departure, returning to Nogales, Mexico. “It

was like a whole new world to me. I lasted 6 months,” he

recalls.487 He reentered the United States twice and both

times was given a reinstatement order to sign; the second

time, he recalls, “They had me sign some papers and then

the officer said, ‘Why are you here? It seems like you had a

pretty good case.’ But by then it was too late. There are a lot

of people who are misinformed [in detention]. You only

find out [about your rights] after you’ve been deported and

after you’ve signed.”488 Pancho’s U.S. citizen wife and young

daughter, who has a serious illness causing paralysis, have

joined him in Mexico; his daughter, Pancho says, is unable

to get the medical care that she needs and would be entitled

to under state health care programs in the United States.489

Norma B. had lived in the United States since she was 15;

two of her sisters are LPRs and a third is a U.S. citizen. She

is the mother of four U.S. citizen children, ranging in age

from two to 16 years old. In 2003, she was removed through

voluntary departure but returned immediately to be with her

children. According to Norma’s sister Alex, in the fall of 2013,

10 years after returning from Mexico, Norma was hiking

with her children when police stopped her near a railroad

crossing, said she was on private property, and asked her

name. Terrified, she apparently gave a false name but quickly

admitted it was not her real name. The police arrested her

and, according to Alex, Norma pleaded guilty to providing

“You only find out [about your rights] after you’ve been deported and after you’ve signed.”





USCIS in response to the ACLU FOIA request made any

further mention of the fact that reinstatement should

not be applied to individuals with these visas.495 Nor did

any of the materials provided suggest that a DHS officer

processing an individual for reinstatement could or should

inform a non-citizen about applying for a VAWA, T, or

U visa. Thus, even learning about these visa options, in

most cases, will require some contact with a legal services

attorney who can identify the claim and inform the

individual of their rights. For many individuals at the

border, that prospect is unlikely.

Demetrio, an indigenous man from Guatemala, has been

deported three times; the first time, he spoke little English

or Spanish (he is a native Quiché speaker) and was unable

to ask for help, as there was no Quiché interpreter available.

The second and third times, he was given a reinstatement

order: “They said, ‘You’ve been deported, just sign. You’re

deported again.’”496 He reentered the United States after his

last deportation to join his wife, but in January 2013, he was

robbed and shot in California. The detective investigating

the crime agreed to certify his application for a U visa

and Demetrio went to get fingerprinted. However, his

Similarly, U-visa claims can be raised in the reinstatement

process; if approved, a U visa will cancel a removal order.493

While the number of U-visa applications has increased

in recent years—from 10,937 applications in FY 2009

to 39,894 in FY 2012—the rate of approvals has actually

decreased (from 79 percent in FY 2009 to 44 percent in

FY 2012).494 The growth in these protective claims as a

claim of last resort does not mean that the applications

are fraudulent or suspect, however. For some individuals

interviewed by the ACLU, these are claims they had before

being deported from the United States, but they never

knew about these claims or had the chance to present them

because they never saw a judge or lawyer who could explain

their options and evaluate their case.

In reinstatement proceedings, the DHS officer is not

required to make any inquiry that would elicit information

suggesting that a person facing reinstatement is eligible for

a U visa. A 2013 USCIS manual on reinstatement, acquired

by the ACLU through a FOIA request, mentioned only in

an asterisked comment on a single page that reinstatement

should not be applied to individuals with VAWA, T, or U

visas; none of the other training materials received from

Undocumented immigrants from El Salvador boarding a deportation flight in Mesa, Arizona, on December 8, 2010.

John Moore/Getty





But, despite her conditional approved U visa and strong

withholding claim, her attorney observes that Adriana

cannot bring her remaining children to the United States,

including her youngest U.S. citizen child, because Adriana’s

ex-partner will not take the child to have her U.S. passport

reissued and Adriana cannot now leave the United States.500

If Adriana was not in reinstatement and won asylum, she

would be able to travel to see her child and potentially

bring her to the United States.

For individuals who did eventually get a hearing and the

chance to make claims in court, these opportunities came

only after the person had been separated from family,

exposed to danger, and in some cases, incarcerated for

illegal reentry. For individuals who win asylum (and for

all seeking asylum under international human rights law),

their manner of entry did not violate the law; for those in

reinstatement or who were prosecuted before being allowed

to claim asylum, their entry means prosecution and,

potentially, a lengthy incarceration.

appointment for the U visa led to his arrest and detention

by ICE. Demetrio says he was told that because of his prior

deportations, he had no right to see a judge: “They closed

my case. Everything is done. I filed an appeal so I won’t be

deported yet. That’s all I know. It’s all been difficult being

here, knowing it’s because I turned myself in.”497

Emmanuel M., who had lived in the United States since

childhood, was coerced into signing a voluntary departure

form and was quickly deported to Mexico even though

he was eligible for a U visa as the victim of a hate crime.

He attempted to return to the United States in 2011

but was quickly returned to Mexico with an expedited

removal order. Emmanuel has now been in Mexico for

approximately two years while applying for a U visa with

an attorney’s assistance so that he can rejoin his family in

California.498

Adriana, an Ecuadorian national and the mother of two

U.S. citizen children, had been living in the United States

for five years without authorization when her abusive

partner was arrested for attacking her and was subsequently

deported to Ecuador. Once in Ecuador, Adriana’s attorney

says, he lied and told Adriana that one of their children,

who had remained in Ecuador, was very ill; but when

Adriana arrived with her two U.S. citizen children, she

found her child healthy but herself once again in danger.499

Adriana sent her older U.S. citizen child back to the United

States and tried to flee to the United States as well but

was apprehended twice at the U.S. border and deported.

According to her attorney, Adriana, who speaks Quechua,

does not appear to have been asked much or anything by

CBP in a language she understood about her fear of being

in Ecuador, and on her first attempt to reach the United

States, she was also on heavy pain medication after being

beaten by the partner she was fleeing. On her final attempt

to enter the United States, she was placed in reinstatement

proceedings and able to apply for withholding of removal.

“They said, ‘You’ve been deported, just sign. You’re deported again.’”





crime, financial fraud, and protecting the most vulnerable

members of society.

While many federal judges have expressed concern that

these cases are overwhelming their dockets for no good

reason,504 illegal entry and reentry are now the single most

prosecuted federal crimes and, each year, have accounted for

more federal prison admissions than violent, weapons, and

property offenses combined.505 Some estimates put the cost

of illegal entry and reentry prosecutions, for incarceration

alone, at $1 billion per year.506 In 2013, more than half of

federal prosecutions initiated were for illegal entry or reentry;

97,384 people were prosecuted for federal immigration

offenses in FY 2013, an increase of 367 percent from 2003.507

C. PROSECUTION FOR RETURNINGIn some cases, individuals who return to the United States

after a removal order are apprehended by DHS and then

referred for prosecution in federal court for illegal entry or

reentry into the United States. Entering the United States

without inspection is a federal misdemeanor punishable

by up to six months in prison. In the four judicial districts

where Operation Streamline is in effect, individuals

prosecuted for illegal entry under 8 U.S.C. § 1325 plead

guilty in mass hearings after only briefly consulting

with an appointed criminal defense attorney, with little

opportunity to discuss potential claims for immigration

relief or challenges to their removability with the attorney,

let alone present such claims to a court.501

Under 8 U.S.C. § 1326, reentering the country after being

deported is a felony, and while federal public defenders

representing individuals in these proceedings have more

time for consultation and investigation, the consequences

of a conviction are stark: conviction for illegal reentry can

lead to two years of imprisonment for people with no prior

criminal histories, and up to 20 years for people with more

significant criminal records (including individuals who

have been prosecuted more than once for returning to the

United States).502

In setting its national prosecutorial

priorities, the U.S. Department of

Justice emphasizes, “Given scarce

resources, federal law enforcement

efforts should focus on the most

serious cases that implicate clear,

substantial federal interests” and

has urged U.S. Attorneys to “focus[]

resources on fewer but the most

significant cases, as opposed to

fixating on the sheer volume of

cases.”503 But today, many U.S.

Attorneys appear to do exactly

the opposite, pursuing a high

volume of prosecutions rather than

prioritizing specific cases that serve

the Department of Justice’s stated

priorities of national security, violent

35,000

30,000

25,000

20,000

15,000

10,000

5,000

0199

8199

9200

0200

1200

2200

3200

4200

5200

6200

7200

8200

9201

0201

1

Drug offenses

Missing/Unknown

Violent offenses

Public-order offenses

Property offensesWeapon offenses

Immigration offenses

145% increase

Source: Bureau of Justice Statistics, Federal Justice Statistics Program, http://bjs.ojp.usdoj.gov/fjsrc/ (last visited Feb. 7, 2014)

FIGURE 5

Prisoners Entering Federal Prison, 1998–2011 (by offense)

The number of people prosecuted for federal immigration offenses rose by 367 percent between FY 2003 and 2013.





deported through Operation Streamline found that 85

percent of those interviewed said they would cross again.512

Similarly, a study by the University of Arizona tracking

1,200 individuals deported following Operation Streamline

sentences found no statistically significant difference

between those who went through Operation Streamline

and those who did not in terms of reentry.513 While the

Yuma and El Paso sectors prosecute every apprehended

migrant through Operation Streamline, they have re-

apprehension rates almost identical to those of nearby

sectors (respectively, Tucson and Del Rio/Laredo) that

prosecute only a fraction of apprehended migrants through

Operation Streamline.514

This shotgun strategy also includes prosecutions of children:

between 2008 and 2013, 383 children were prosecuted for

illegal entry or reentry and had no more serious criminal

history; 301 of those children were Mexican.508Attorney

Victoria Trull, who represents defendants in illegal reentry

proceedings, said the majority of people she sees have been

removed without ever seeing a judge, through expedited

removal or reinstatement.509 “You have people who don’t

even speak Spanish, they grew up here, have lived here for an

extended period of time but left briefly and got [expedited

removal],” Ms. Trull says, “and then they try to come back

again and get prosecuted for illegal reentry.”510 Ms. Trull

says she has also represented young non-citizens who might

have been eligible for DACA but were deported before that

program was initiated: “They came back because this is all

that they know; it’s really heartbreaking.”511

Prosecution for illegal entry or reentry has been promoted

as part of the “Consequence Delivery System” and as a

way to deter individuals who have been deported from

returning without authorization. But particularly for

people with family in the United States or a genuine

asylum claim, prosecution for illegal entry or reentry may

further complicate their immigration future without being

a meaningful deterrent. An NPR survey of individuals

For many people, there is no mechanism to address and correct procedural violations or factual errors in their deportation orders.

FIGURE 6

Border Removals in FY 2013FIGURE 7

Immigration Crimes FY 2003–2013

Border Removals in FY 2013 By Most Serious Lifetime Criminal Conviction. While the majority

of individuals deported at the U.S. border had no criminal history, of those removed who had

been convicted of a criminal offense at some point, the principal category was immigration

crimes. Between FY 2003 and 2013, 9 percent of border removals were individuals with a

conviction for an immigration crime; in FY 2014 alone, 14 percent of border removals had

been convicted at some point for an immigration crime. Source: Marc R. Rosenblum & Kristen

McCabe, MIGRATION POLICY INSTITUTE, DEPORTATION AND DISCRETION: REVIEWING THE RECORD AND OPTIONS FOR CHANGE (2014) (based on DHS data analyzed by Migration Policy Institute), available at http://

www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-

change. Note: Total may not equal 100% because of rounding.

The overwhelming majority of individuals removed at the border between FY 2003 and 2013

(77 percent) had no criminal convictions. Of the remaining 23 percent who had a criminal

conviction, the single largest category of criminal offenses (9 percent) was “immigration

crimes.” The convictions that are considered immigration crimes are shown in this graph.

Between FY 2003 and 2013, DHS removed 193,790 individuals at or within 100 miles of the U.S.

border whose most serious lifetime criminal offense was an immigration crime. Source: Marc

R. Rosenblum & Kristen McCabe, MIGRATION POLICY INSTITUTE, DEPORTATION AND DISCRETION: REVIEWING THE RECORD AND OPTIONS FOR CHANGE (2014) (based on ICE data analyzed by Migration Policy

Institute), available at http://www.migrationpolicy.org/research/deportation-and-discretion-

reviewing-record-and-options-change. Note: Total may not equal 100% because of rounding.

Nuisance Crime (1%)

Domestic Abuse (1%)

Traffic—Non-DUI (2%)

Drugs—Sale/Transport/Distribution (1%)

Traffic/DUI (2%)

Drug Possession (1%)

FBI Part 2—Violent (1%)

FBI Part I (2%)

FBI Part 2-Nonviolent (3%)

Noncriminal Removals

Immigration Crimes

14%

73%

Illegal Reentry

Possession of Fraudulent Immigration Documents

Trafficking of Fraudulent Immigration Documents (1%)

False Claim to U.S. Citizenship (1.5%)

Illegal Entry

77%

9%

12%





provides the first opportunity for an

individual to learn about and raise

defects in their original deportation

order, including claims they

should never have been in removal

proceedings in the first place.

In an illegal reentry case, the

government has to demonstrate that

the defendant (a) is not a citizen of

the United States; (b) was previously

removed from the United States; and

(c) entered, attempted to enter, or

was found back in the United States

without authorization.518 But the U.S.

Supreme Court has held a conviction

for illegal reentry cannot be based

on a prior deportation order that

violated due process.519 In response, Congress explicitly

amended the illegal reentry statute to incorporate a three-

part test for when a defendant can collaterally challenge

a prior deportation in a prosecution under section 1326.

Now, under 8 U.S.C. § 1326(d), a defendant can challenge

the validity of their underlying removal order in a criminal

prosecution for illegal reentry if (1) he or she exhausted

available administrative remedies to seek relief from the

prior removal order;520 (2) he or she was deprived of the

opportunity for judicial review; and (3) the order was

fundamentally unfair. To show fundamental unfairness,

the defendant must show both that his or her due

process rights were violated by defects in the underlying

deportation order, and that he or she was prejudiced as a

result of the defects.521

For example, Jose Arteaga-Gonzales came to the United

States in 1987 when he was three years old and in 2005

received an approved I-130 petition (which establishes the

relationship between a U.S. citizen or lawful permanent

resident and a non-permanent resident for immigration

purposes522). In 2008, when Mr. Arteaga-Gonzales was 21

years old, CBP deported him to Mexico with an expedited

removal order at the San Ysidro Port of Entry in California

when he was en route to see his newborn U.S. citizen son.

CBP also charged him with making a false claim to U.S.

citizenship—which includes a permanent bar to reentry—

despite contrary evidence in his sworn statement, which

Felipe R., who was pressured to take voluntary departure

in 2003, has repeatedly tried to come back to reunite

with his U.S. citizen daughters and was convicted of

illegal entry and later illegal reentry. Although Felipe was

kidnapped by a gang in Mexico, CBP has never referred

him for an interview with an asylum officer and has simply

reinstated his removal. Says Felipe, “[The officers] said

if I didn’t sign, they could leave me there.”515 Although

Felipe already spent time in prison after returning without

authorization, he says he will try again to be with his

daughters and seek safety in the United States: “There are

a lot of people fighting for asylum who have their lives in

the United States. They don’t want to put their families in

danger. I would rather spend my life in jail than go back to

Mexico.”516

Similarly, Francisco first came to the United States in 1989

and has been deported multiple times; when interviewed

in a migrant shelter in Tijuana, Francisco had just served

16 months in federal prison for illegal reentry before being

processed through reinstatement by ICE and deported to

Mexico. His two U.S. citizen children are in California and

despite just being released from prison, Francisco wanted

to return to his family in the United States: “I can’t wait too

long.”517

Ironically, for some individuals, prosecution—or more

accurately, representation by a federal public defender—

Reynosa, Mexico, April 2014. A cross on the Mexico side of the border with the United States (Texas) marks a memorial to migrants who have died trying to reach the United States. Coahuila, on the Mexican side of the Rio Grande Valley, has one of the highest rates of murders and disappearances in Mexico, along with the neighboring states of Nuevo León and Tamaulipas.





believed, incorrectly, that he had been convicted of a drug

offense that constituted an aggravated felony. In fact, he

had not yet been sentenced when he was deported by an

immigration judge, and upon his return to the United

States, he was processed through reinstatement and

prosecuted for illegal reentry. His attorney successfully

demonstrated that his deportation as an aggravated felon

was unlawful, and the prosecution joined the defendant in

moving to dismiss the indictment.525

* * *

Individuals who are unfairly deported without a hearing

are not only denied a chance to defend their rights during

the initial deportation but, when and if they return, can

also be processed through the criminal justice system

instead of given the chance to rectify and explain the

unfairness of their prior removal. Many individuals

interviewed by the ACLU did not appear to have knowingly

or voluntarily waived what rights they had at the time

of their deportation, nor did they recall immigration

authorities ever explaining their deportation orders to

them. Others have been unlawfully removed due to a

mistake about the (constantly evolving) law on aggravated

felonies. However, for many of these individuals, there

is no mechanism in the immigration system to address

and correct the procedural violations or factual errors in

their deportation orders. Without an attorney and out

of the United States, individuals who do have claims to

reopen their cases will find the path to doing so logistically

complex, expensive, and still uncertain. A prosecution for

illegal reentry is hardly a boon. For one thing, collaterally

attacking the underlying removal order is only a defense to

the criminal prosecution. It may not be enough to ensure

that the individual can remain in the United States and

finally have their claims considered.

Moreover, the person’s right to a public defender ends once

the criminal prosecution is over, leaving the person without

an attorney to help in the often complicated immigration

proceedings that follow. Federal public defenders and

immigration attorneys told the ACLU that in practice,

once a person has successfully collaterally attacked a prior

deportation order, ICE does not always reinstate the prior

order—however, even if they do not choose to reinstate,

ICE may issue a new summary removal order such as an

shows he said he was not a U.S. citizen. Because there is no

mechanism for requesting judicial review of an expedited

removal order in such circumstances, he could have been

permanently prevented from visiting his child without a

way to undo the order. However, during his prosecution

for illegal reentry, a federal court examined his expedited

removal order and found that it violated due process.523

Similarly, Jose Luis Gonzalez-Segundo’s attorney was able

to successfully challenge his prior 238b deportation order

in federal court by demonstrating that the order violated

due process where Mr. Gonzalez-Segundo had not waived

his right to an attorney and was not read or explained the

238b order in a language that he understood.524 Mizael

Padilla Hernandez was wrongfully stripped of his LPR

status and deported because immigration authorities

Closeup of a mural at a migrant shelter in Nogales, Mexico, run by the Kino Border Initiative. Many individuals are deported from the United States without their money, phone, or a change of clothes. The shelter provides individuals recently deported from the United States with meals, clothing, and other personal items and helps migrants find government services.





were later able to apply for relief from removal and for

protection through withholding of removal or asylum,

they spent unnecessary time in prison and, in some cases,

received felony convictions for attempting to seek asylum.

Soledad H. R., a 58-year-old woman from Mexico, came

to the United States in 2007, fleeing two decades of

physical and psychological abuse by her husband, Jesus.528

Soledad says Jesus repeatedly tried to murder her—on one

occasion, he poured gasoline over the house and locked her

inside, and on another he attempted to run his truck over

her—but police officers repeatedly refused to arrest him.

Finally, after two of her three children had been murdered

in Mexico, Soledad escaped to California to join her only

remaining son. In 2010, the aunt who raised Soledad

was dying, and Soledad returned to Mexico to see her;

however, Soledad’s husband learned of her return, found

her, and threatened to kill her. Fearing for her life, Soledad

attempted to return to the United States using a false visa

and was arrested by CBP. Although the officers did ask if

she was afraid to return to Mexico, and Soledad said yes,

she was not referred for a credible fear interview. Instead,

she was prosecuted for use of a false visa. “I had brought a

lot of papers of the complaints about my husband. They

asked why I had brought all that,” recalls Soledad. “I would

expedited removal order, so that the individual once again

will be deported without a chance to present his or her

claims in court. Getting a hearing before an immigration

judge continues to be a matter of luck.

1. Asylum Seekers and Criminal ProsecutionIn addition to individuals with family in the United States,

asylum seekers who are deported without a hearing will

inevitably return and try again to seek protection, if they

can. But the next attempt to claim asylum may lead them

first into the criminal justice system. A 2013 report by

Human Rights Watch concluded that “prosecutions for

illegal entry or reentry may include a number of defendants

with a colorable claim to asylum,” and these prosecutions

interfere with an individual’s ability to seek asylum

and win protection.526 Such prosecutions unjustly and

unlawfully punish a person for pursuing his or her right

to seek asylum.527 Several asylum seekers interviewed by

the ACLU were prosecuted for illegal reentry when trying

to seek sanctuary, and one was also prosecuted for use of

a fraudulent visa, which she used to escape abuse and seek

protection in the United States. While these individuals

Soledad H. R., seen here with her attorney, Ana Herrera, tried to seek asylum in the United States. Instead, she was prosecuted for illegal reentry and spent two years in criminal and then immigration detention. San Francisco, California.





police. Finally, Inocencia sent her children back across the

border to family in California. Then she tried to cross by

herself.

“The first time,” Inocencia recalled, “the officer said, ‘The

government can keep your kids because you are illegal.

It is a crime, what you did.’”533 Inocencia says she did not

understand what was happening and explained that she

could not read the forms they were giving her because she

is illiterate: “Because I told them I didn’t know how to read,

I felt immigration was making fun of me. I didn’t know

anything about the law.” The officer told her to sign several

papers, even after she explained that she could not read or

write. She was immediately ordered deported by Border

Patrol agents at San Ysidro, who did not ask about her fear

of being returned to Mexico.

Inocencia made a second attempt to rejoin her children;

she says she was stopped again and questioned by an officer

who spoke very little Spanish (and she understood little

English). Inocencia says the officer joked that if she married

him, he could help her. Once again, she was deported.

Inocencia tried for a third and final time in 2012. This time,

she was referred for prosecution for illegal reentry and

put in prison. “The third time, thank God, they put me in

jail so he couldn’t touch me,” says Inocencia. Inocencia’s

federal public defender met her in jail and asked if she

had any fear of returning to Mexico. “He asked me if I

knew about asylum, and I said no, so he explained to me

what asylum is,” says Inocencia.534 The judge presiding

over her illegal reentry case ordered her released, and her

federal public defenders immediately contacted ICE and

explained that Inocencia was afraid to be deported to

Mexico. Inocencia was taken to an immigration detention

try to ask questions and [the officer] just told me to shut

up.”529 Soledad told her federal public defender, the federal

judge, and immigration authorities that she was afraid to

be deported; nevertheless, at the end of her sentence for

illegal reentry, Soledad was deported to Cuidad Juárez,

Mexico, on February 11, 2011. Soon after, she reentered

the United States on May 27, 2011, was caught by CBP,

and again explained her fear of being murdered by her

husband. Once again, instead of seeing an asylum officer,

Soledad was prosecuted for and convicted of illegal reentry;

she was sentenced to one year and one day (later reduced to

10 months).

In April 2012, Soledad was transferred to ICE custody,

where she once again reiterated her fear of being deported.

Finally, an ICE official did refer her for a reasonable

fear interview, which she passed. As the social workers

evaluating Soledad observed, “the traumas remain fresh in

her memory, so that she relives them rather than simply

remembering, and experiences again all the anguish

engendered by the original events. For this reason, she has

felt very threatened by the asylum process and has delayed

her application because it necessitates confronting her

history once again.”530 Soledad continued to be detained by

ICE during her proceedings for 14 months until she was

released after a Rodriguez bond hearing.531 Because she was

in reinstatement proceedings, she no longer qualified for

asylum but is pursing withholding and a U visa. In total,

Soledad spent two years in detention for the criminal and

civil immigration charges; if she had been referred for a

credible fear interview upon her first attempt to return

to the United States, she would probably not have been

prosecuted, imprisoned, and separated from her son, her

sole surviving family, for so long.

Inocencia C. came to the United States from Mexico when

she was 12 years old. At a young age, she became entrapped

in a physically and psychologically abusive relationship

with a man who raped and beat her over the course of a

decade. In 2010, Inocencia recalls, her partner, who was

also from Mexico, decided to leave the United States and

convinced Inocencia and their three young U.S. citizen

children to join him, claiming he would stop using drugs

and alcohol.532 But once in Mexico, the violence quickly

resumed, Inocencia says, and she felt more in danger in

Mexico, where her partner had many friends among the

“I feel more fear [of being deported] because of my children. The oldest two tell me if we go back to Mexico, it would be our death.”





Soon after Ricardo E. was deported to El Salvador, he

was assaulted and threatened both by gang members and

local police. Ricardo believes that he was targeted by the

police after he stood up to local police officers who were

threatening his girlfriend and that, to punish him, police

officers sent gang members to threaten him and demand

money. According to his attorney, Jacqueline Bradley

Chacon, the gang, colluding with police, threatened to kill

him unless he continued to give them money; eventually,

he could no longer afford to pay them and pay the medical

bills for his ill parents.540 Ricardo’s cousin was trying to

help pay the gang but also ran out of money and was

murdered, apparently because of his inability to meet the

gang’s extortion demands. Fearing for his life, Ricardo

returned to the United States but was apprehended by

ICE and placed in reinstatement proceedings. When he

claimed fear of returning to El Salvador, he was referred to

an asylum officer. But after the reasonable fear interview

and after the asylum officer had completed the assessment,

the asylum officer told Ricardo and his attorney that

while he was inclined to find in favor of Ricardo, he no

longer had jurisdiction over the case because Ricardo

had been referred for prosecution for illegal reentry. Ms.

Bradley Chacon observed that had her client received the

favorable finding before being referred for prosecution,

he would have had strong grounds to reopen the prior

removal order. Ms. Bradley Chacon noted that, as a policy

matter, this prosecution was nonsensical: “Why refer

someone for prosecution when he is a prima facie case

of eligibility for withholding? Wouldn’t our obligations

under non-refoulement [not to deport a person to a place

where he faces persecution] trump everything?” Ricardo

was sentenced to a year in prison for illegally reentering

the United States, which he was still serving at the time

this report was written; his immigration proceedings have

been on hold while he serves his criminal sentence and his

withholding claim has not yet been adjudicated.

facility but managed to find an immigration attorney,

explain her fear of being deported, and finally get before an

immigration judge. She was eventually released on bond

and able to reunite with her children. “I feel more fear [of

being deported] because of my children,” she says. “The

oldest two tell me if we go back to Mexico, it would be our

death.”535

Ericka E. F., a 33-year-old from Honduras, first came to

the United States in April 2013, fleeing from both domestic

violence and gangs that she says had tried to kill her and

burn down her home. When she arrived in Texas in 2013,

she says she asked for help from the border officials: “I told

[the officers] I was fleeing for protection, because of the

violence. They said women always come here with lies. I

told them it was true. He just laughed and laughed.”536 She

was deported, but still in danger, came back to the United

States. When she returned later that year, she was referred

for prosecution for illegal entry and sentenced to 30 days.

After serving her sentence, Ericka says, she was finally able

to request help and get a reasonable fear interview, which

she passed. Two of her children are still in Honduras—one

is hiding from Ericka’s ex-partner, who threatened to kill

them. Even if she wins her case, she cannot petition to

bring her daughters over.

Currently, when an individual applies for asylum, the U.S.

government’s policy appears to be to put the asylum issue

on hold when the individual was previously deported even

though, regardless of the merits of that deportation order,

it may not impact whether the person has a bona fide

asylum claim. Training materials provided to the ACLU

in response to a FOIA request state that when asylum

officers determine that an asylum seeker has a prior order

of removal, the officer must inform ICE.537 Further, “[t]he

processing of the asylum application stops until the Asylum

Office is notified either that the prior order has been

reinstated or that the [ICE Special Agent in Charge] will

not reinstate the order.”538 Even if the individual has already

applied for asylum, the guidance notes, he or she is not

“automatically entitle[d]” to an interview with an asylum

officer unless he or she is “specifically referred to an Asylum

Office by the office that reinstated the order.”539 In some

cases, not only is the asylum process suspended, but an

individual, brought to the attention of a DHS officer, can

be referred for prosecution.





lives because they cannot adjust. [CBP officers] are not

educated about the consequences of these orders.”543 As

attorney Marisol Pérez observed, in communities along

the southern U.S. border, where people have had family on

both sides of the border for decades, these orders create

severe ruptures in families and whole communities: “It’s

detrimental, especially for South Texas individuals, because

the consequences that attach to [expedited removal]

are horrible—10 years outside the U.S.? No one can

accomplish that if they are married to a U.S. citizen and

have children.”544

There is no publicly available guidance on how CBP

determines whether someone is purposefully committing

fraud or misrepresentation, and when to charge or refrain

from charging a non-citizen on one of these grounds.

Overcoming a deportation order and its bars on reentry is

sufficiently difficult for most people; waivers, even when

available, can be expensive and are not guaranteed.545

Most people who were unrepresented when deported will

face the same or greater difficulties in learning about and

applying for lawful opportunities to reenter the United

States once outside its boundaries.

For individuals who have family in the United States—

parents of young children, in particular—the temptation to

return without waiting for permission may be too great to

resist, particularly where no other option appears feasible.

As community organizer Lesley Hoare in Washington

State said, individuals deported and separated from their

families are likely to come back, whatever the cost: “I think

it feels like there is no other option where their whole

family is here,” says Ms. Hoare. Although, Ms. Hoare notes,

apprehensions by Border Patrol are decreasing in the Forks

area of Washington State where she works, families are still

contending with the effects of having a relative deported

without a hearing: “Things are going better now, but there

are so many people who had no chance. They should be

able to come back and have a chance. … It would do a lot

of good for a lot of people and for our country and our

community if people could come back.”546

Katie R., a U.S. citizen, and her husband Jorge have

been together for 18 years; they have two U.S. citizen

children. But her husband’s immigration status and prior

deportation order are a constant cause of anxiety for

D. AMERICAN FAMILIES LIVING IN THE SHADOWSDeportations affect entire families, and in recent years,

there has been increased attention paid to the impact of

deportations on U.S. citizen children; some are left behind

with relatives, some become part of the state foster care

system, and others are effectively deported alongside their

parents. ICE reports that in 2013 alone, 72,000 parents

of U.S. citizens were deported from the United States.541

According to a 2013 report by Human Impact Partners,

4.5 million U.S. citizen children have at least one parent

who is undocumented542; thus, the number of children

who could see a parent deported, absent assistance from

immigration reform, is even higher. For parents who are

deported, returning to the United States without waiting

for authorization may seem necessary in order to take care

of their families and in the absence of a quick, affordable,

and certain way to return.

Summary removal procedures, as discussed in previous

chapters, are problematic because they do not take

individual equities into account; are prone to risk in the

absence of a lawyer and judge; do not provide families with

the opportunity to prepare for the separation; and offer few

opportunities for the individual to get judicial review, even

if he or she might have been eligible for relief if he or she

saw a judge and had an immigration hearing.

For many individuals, the lack of accountability and review

for unfair removal orders is compounded when those

orders include a finding of fraud or a false claim to U.S.

citizenship, which may mean a permanent bar to returning

to the United States and cutting off avenues of adjusting

status in the future. As attorney Jaime Díez observes,

“When [immigration officers] give fraud bars to people

with U.S. citizen kids, they are screwed for the rest of their

In 2013 alone, 72,000 parents of U.S. citizens were deported from the United States.





there, one of the [travel agency] employees came out of the

embassy and said there was no need to go in; ‘I have your

passport here.’”549 Consuelo says it did not occur to her that

the visa was fraudulent because it was in her own name

and in her passport. When she arrived in the United States,

however, she was pulled aside for additional questioning.

“[The officer] said, ‘You are under arrest; this is a fraudulent

visa.’ At that point I was so scared, I was in shock; I couldn’t

believe what he was saying.”550 Consuelo recalls that she

was detained for many hours while numerous officers

questioned her, accusing her of using a fake passport, asking

who she had bought her passport from, and telling her she

would go to jail for many years: “I would do anything to get

out of there. When I heard ‘jail,’ I thought about the jails in

my country where you get stabbed, raped, killed. . . . I said I

want to call my embassy or my sister, and they said, ‘No, you

have no right.’ I told them again what happened. He didn’t

want to write down my story—he would only start from

where the guy came out of the embassy. He didn’t believe

or write down the rest.”551 The questioning continued

for several days while Consuelo was in a detention center

waiting for a plane to return her to Peru, and started again

when she was brought back to the airport. As Consuelo

remembers, on that last day,

They said, “You have to tell us your name,” but

I kept telling them and they wouldn’t believe it.

When you are so depressed and tired, at some

point you think saying another name will free

you, even if it’s not your name. You think it will

be over, you just want the nightmare to be over.

I said, “Put whatever name you want.” . . . Even

now I think, how would I do that, why did I do

that, it was stupid it was done, but at the time I

just wanted it to be over. Then they brought a set

of papers they wanted me to sign first. They said,

“It’s so you can go to your country and this is

because you committed a crime; you committed

fraud.” I said, “No, I’m not going to sign.” He

grabbed my hand, he slammed my arm because

I wouldn’t let him force me to sign. The others

were banging the table with their hands, pushing

my shoulder. It was very intimidating—three or

four people screaming, “You are a criminal, sign

the fucking paper, you are going to jail.” Then

the family. Jorge came to the United States in 1996 after

separating from his wife in Mexico. He met Katie and, in

2000, after the birth of their first child, returned to Mexico

to finalize his divorce so that he and Katie could marry.

When he returned to the United States, Jorge was put

in secondary inspection at a port of entry in Texas and

questioned for several hours. The officers went through

his wallet and found his Mexican ID but claimed Jorge

fraudulently claimed to be a U.S. citizen. He was deported

without the chance to call his family. Katie went to Mexico

to marry Jorge and they both returned to the United States

with their baby (they now have two U.S. citizen children).

Katie says that it was only after consulting with attorneys

that the family found out about the alleged false claim to

U.S. citizenship. This charge, which Jorge denies, means

he cannot adjust his status based on his marriage to a U.S.

citizen, his U.S. citizen children, or his years in the United

States under current immigration law. For Katie, the strain

of keeping her husband’s status a secret to keep the family

together is enormous: “I’m a really honest person and hate

not telling the whole truth. It’s incredibly stressful. It’s like

you’re living a lie, but the alternative is to not have my

husband.”547 Jorge is the main breadwinner for his family,

but with his status he is in a permanently delicate position.

Says Katie, “The simple things like health insurance for

your children . . . or getting car insurance; you say you’re

married and then they want your husband’s name and

drivers’ license, and I can’t tell them. It’s like there is an

underlying lie you have to keep and you want to shout out

that this isn’t a bad thing.”548

When Consuelo first came to the United States from Peru

to visit her sister, her parents went through a known travel

agent and applied and paid for a tourist visa. Consuelo

recalls, “We thought we could trust them. They told me

to go to the interview at the U.S. embassy, and when I got

“It’s like there is an underlying lie you have to keep and you want to shout out that this isn’t a bad thing.”





they said, “We’re going to put you in jail,” so I

signed the paper they put in front of me.552

Consuelo eventually came back to the United States

without authorization to help her sister, who was being

abused by her partner. She has since married a U.S. citizen

and has two U.S. citizen children. But she has been living in

the shadows for over a decade, unable to adjust her status

and terrified of being separated from her family. She says

she has been to several attorneys but is always told the same

thing: that because of the fraud bar, she is permanently

banned from immigration relief.553

* * *

The consequences of a deportation order are severe, as

is the price of returning to the United States without

permission, whatever the motive. The costs may be

disproportionately borne by people with strong ties to the

United States. There are undoubtedly circumstances where

the deportation order is lawful and justified, but where an

individual is ordered deported without a hearing and by

an immigration officer, there is more risk that the order

will be erroneous or unfair. The existing system offers

few (or fewer) avenues to rectify an unfair deportation

order, providing as few safeguards in the aftermath of

deportation as exist during the summary expulsion process.

These procedures are quick, but not quickly undone, even

when the law and the facts of a case make clear that an

error was made. Under human rights law, a person facing

deportation not only has the right to be heard before a

competent and independent adjudicator, but also has the

right to a remedy. Both rights are frequently illusory for the

majority of people deported from the United States today.





protections from arbitrary or prolonged detention; and

particular protections for children and families.

A. ACCESS TO JUSTICE AND THE RIGHT TO A FAIR HEARINGAn individual cannot assert and protect his or her rights

without the right to be heard. International human rights

law specifically recognizes the right of a non-citizen facing

deportation to have a hearing about his or her claims in

front of a competent authority. The International Covenant

on Civil and Political Rights (ICCPR), which was ratified

by the United States, provides that an individual “lawfully

in the territory of a State party” must “be allowed to submit

the reasons against his expulsion and to have his case

reviewed by, and be represented for the purpose before,

the competent authority or a person or persons especially

designated by the competent authority.”555 The U.N.

Human Rights Committee, the body that monitors state

compliance with the ICCPR, has determined that non-

citizens who want to challenge a deportation order against

them are “lawfully in the territory” and, should the legality

of their presence or entry be in question, “any decision on

this point leading to his expulsion or deportation ought

to be taken in accordance with article 13 ... an alien must

be given full facilities for pursuing his remedy against

expulsion so that this right will in all the circumstances of

his case be an effective one.”556

The U.N. Secretary General recently warned against

arbitrary forced returns that may lead to additional human

rights violations, and reiterated the right of every migrant

“to an individual and proper assessment of her or his

circumstances by a competent official, including protection

needs and human rights and other considerations, in

addition to reasons for entry.”557

Human rights law further recognizes the right of an

individual facing expulsion to legal assistance,558 and some

individuals—for example, persons with disabilities559 or

children560—may need particular assistance. The U.N.

principles governing all detainees state that a detainee

IV. INTERNATIONAL LAW AND RESTRICTIONS ON SUMMARY REMOVALS

International human rights law has developed explicit

protections for non-citizens facing expulsion or seeking

admission to another country. In addition to human rights

law’s strong protections for individuals seeking asylum,

adopted into U.S. law through the Refugee Convention and

the Convention Against Torture, international law requires

that all individuals facing deportation have an opportunity

to be heard, to advocate for their rights (including their

family rights), and to be treated humanely. International

law does not require states to admit all non-citizens; as the

Inter-American Court of Human Rights has held, “States

may establish mechanisms to control the entry into and

departure from their territory of individuals who are not

nationals, as long as they are compatible with the norms of

human rights protection.”554 Thus, when a state chooses to

deport non-citizens, human rights law requires that it also

provide them with a fair opportunity to be heard and have

their case reviewed; the chance to seek asylum, if relevant;

Human rights law requires that all persons appearing before a judicial proceeding receive “a fair and public hearing by a competent, independent, and impartial tribunal.”





in the border zone, in particular, are generally detained in

a holding cell, where they have no way of finding a lawyer

and sometimes without knowing where they are. The

rapidity with which they are deported makes it even more

challenging to obtain legal assistance before deportation.

Even beyond the border, individuals coerced to accept

voluntary departure have been prevented from contacting or

conferring with their attorneys prior to removal.

Moreover, under human rights law, access to justice does

not only mean procedural fairness, but also includes

the right to an effective remedy for victims of human

rights violations. Article 2 of the ICCPR requires the

government to “ensure that any person whose rights or

freedoms as herein recognized are violated shall have an

effective remedy . . .”565 This same principle is enshrined

in numerous other human rights instruments, including

Article 8 of the Universal Declaration of Human

Rights,566 Article 14 of the Convention Against Torture

and Other Cruel, Inhuman, or Degrading Treatment

or Punishment,567 Article 6 of the Convention for the

Elimination of All Forms of Racial Discrimination,568

Article 25 of the American Convention on Human

Rights,569 and Article 13 of the European Convention on

Human Rights.570

The current U.S. system of summary deportations denies

many people a meaningful way to challenge unlawful

deportation orders that violated their human rights. For

example, an asylum seeker unlawfully returned to a country

where he or she was subsequently tortured cannot easily

challenge that deportation order and has no immediate

remedy for the harm he or she experienced resulting from a

violation of human rights law requirements under non-

refoulement (prohibiting a state from returning a person to

a place where he or she faces persecution).

In the absence of these critical protections required by

human rights law, many individuals deported today

through a summary removal procedure are denied access

to justice both before and after their deportation from the

United States.

should receive legal assistance if he or she is unable to

afford a lawyer.561

Under international law, it is not enough to provide a

person with a hearing in front of a law enforcement agent

while in detention. Rather, human rights law requires that

all persons appearing before a judicial proceeding receive

“a fair and public hearing by a competent, independent,

and impartial tribunal.”562 Similarly, Article 8(1) of the

American Convention on Human Rights, signed by the

United States in 1977, provides each person with “the right

to a hearing, with due guarantees and within a reasonable

time, by a competent, independent, and impartial tribunal,

previously established by law” in the determination of their

rights.563 Interpreting the American Convention on Human

Rights, the Inter-American Commission on Human Rights

has stated that deportation proceedings require “as broad

as possible” an interpretation of due process requirements,

and that they include the right to a meaningful defense and

to be represented by an attorney.564

These numerous protections and rights are absent in the

current U.S. system of summary removal, in violation

of human rights law. Summary deportations without

a hearing violate these laws by denying a non-citizen

the opportunity to present claims and defenses against

removal; the opportunity to be represented by an

appointed attorney; a meaningful opportunity for judicial

review; and the opportunity to have their case reviewed

by a competent and neutral arbiter. In the proceedings

discussed in this report, most people will have their

case examined only by an officer of the Department of

Homeland Security, the same agency that is arresting,

interrogating, detaining, and deporting them. The charging

and reviewing officers are not required to be attorneys, let

alone judges, and yet rights determinations, even at the

border, can be complex and require sophisticated legal

analysis. Under human rights law, this limited proceeding

does not qualify as a hearing before a competent or

independent tribunal; indeed, the extent to which these

summary procedures constitute “hearings” at all is suspect.

Individuals processed through these summary expulsion

mechanisms rarely have the opportunity to speak with an

attorney before being deported. Expedited removal does not

include the right to an attorney, and individuals arrested





to ensure that asylum seekers can access this protection

by (1) adequately training border officials who apprehend

and screen arriving migrants; (2) providing migrants with

information in their own language about their right to

seek asylum; and (3) investigating and disciplining officers

who “obstruct access to protection and assistance services

by failing to refer migrants to appropriate protection and

assistance services.”574

International human rights and refugee law contain an

absolute prohibition on returning an individual where

he or she faces torture, persecution, or other degrading

treatment.575 While the United States has adopted the

Refugee Convention into domestic law, human rights law

continues to recognize stronger substantive protections

than the United States has. For example, in Sale v. Haitian

Ctr. Council, Inc., the U.S. Supreme Court held that the

United States was not in violation of its non-refoulement

obligations in returning Haitians interdicted on the high

seas because the Haitians were not within U.S. territory

(and so the non-refoulement provision did not apply).576

By contrast, the Inter-American Commission on Human

Rights rejected the U.S. Supreme Court’s reasoning, finding

that the United States had indeed violated these Haitian

migrants’ rights to seek asylum as well as their right to life,

liberty, and security of the person by summarily returning

interdicted Haitians without first

providing them a meaningful

opportunity to have their claims

heard and adjudicated.577

Currently, even within the United

States territory, many asylum seekers

arriving in the United States are

effectively denied the opportunity to

seek protection when border officials

fail to inform them of that right and

ignore or screen out claims of fear of

persecution. In so doing, these officers

not only deprive individuals of their

rights under human rights and U.S.

law to request protection, but also

risk violating binding human rights

obligations to ensure that individuals

are not returned to countries where

they are in danger. Several individuals

B. THE RIGHT TO APPLY FOR ASYLUM AND THE RIGHT TO PROTECTION FROM PERSECUTIONArticle 14 of the Universal Declaration of Human

Rights (UDHR) provides that “[e]veryone has the right

to seek and to enjoy in other countries asylum from

persecution.”571 Similarly, the American Convention on

Human Rights explicitly provides for the right of an

individual “to seek and be granted asylum in a foreign

territory, in accordance with the legislation of the state and

international conventions, in the event he is being pursued

for political offenses or related common crimes.”572 Thus,

while not everyone may be eligible for asylum, all persons

seeking such protection have the right to request it and, if

eligible, to receive its benefits.

Recognizing the danger that asylum seekers may be

deported when they arrive at an international border

seeking assistance, the Office of the High Commissioner

for Human Rights (OHCHR) recently reiterated states’

obligations to ensure that migrants are given “access to

information on the right to claim asylum and to access fair

and efficient asylum procedures.”573 Supporting this right to

claim asylum, the OHCHR specifically called upon States

A migrant shelter in Nogales, Mexico, provides food and assistance to those recently deported from the United States.

John Moore/Getty





C. SPECIAL PROTECTIONS FOR CHILDRENHuman rights law recognizes the vulnerability of child

migrants, particularly those traveling alone. Under the U.N.

Convention on the Rights of the Child, which the United

States has signed but not ratified, states are obliged to

provide protection and care for unaccompanied children

and to take into account a child’s best interests in every

action affecting the child.581 The decision to return a child

to his or her country of origin, under international law,

must take into account the child’s best interests, including

his or her safety and security upon return, socio-economic

conditions, and the views of the child.582 If a child’s return

to their country of origin is not possible or not in the

child’s best interests, under human rights law states must

facilitate the child’s integration into the host country

through refugee status or other forms of protection.583

interviewed by the ACLU said they had asked for protection

at the U.S. border, were instead deported, and were

subsequently assaulted, kidnapped, raped, or killed. Many

U.S. immigration officers appear to believe, incorrectly, that

violence from gangs and other non-state actors will not

trigger protection in the United States; however, threats and

violence from these non-state actors are also grounds for

international protection under human rights law.578 These

are exactly the dangers that human rights law was designed

to address and prevent.

Instead of receiving these necessary protections, some

asylum seekers who arrive without prior authorization

or travel documents are prosecuted in the United States

for illegal entry or reentry, and sentenced to prison in

violation of human rights law. The Refugee Convention,

recognizing that asylum seekers often must arrive without

prior authorization or valid travel documents, provides

that asylum seekers shall not be penalized for their illegal

entry or presence.579 The UNHCR’s Detention Guidelines

also require that detention not be “used as a punitive or

disciplinary measure for illegal entry or presence in the

country,”580 and yet that is exactly what prosecutions for

illegal entry or reentry do. Criminalizing, prosecuting, and

imprisoning asylum seekers for entering the United States

without authorization directly contravenes their right to

apply for asylum and to not be punished for the way they

arrive when fleeing danger.

Criminalizing, prosecuting, and imprisoning asylum seekers for entering without authorization directly contravenes their right to apply for asylum.

Brownsville, Texas, April 2014. The border fence separating

Mexico and the United States near a children’s playground.





interacting with the legal system. As the U.S. Supreme

Court has stated, in addressing the right to appointed

counsel in juvenile delinquency proceedings, a child

“needs the assistance of counsel to cope with problems of

law, to make skilled inquiry into the facts, to insist upon

regularity of the proceedings, and to ascertain whether

he has a defense and to prepare and submit it. The child

‘requires the guiding hand of counsel at every step in

the proceedings against him.’”589 Although international

human rights law requires that unaccompanied children

be provided with legal assistance,590 in U.S. immigration

proceedings there is no right to appointed counsel under

domestic law. As a result, many children are alone, without

representation, while facing incredibly complex legal

proceedings. Without legal assistance, even children who

have strong asylum claims may be unjustly deported and

unlawfully returned to danger if they cannot express and

defend their claims in court.

While human rights law, in general, limits the use of

detention for immigration violations, the U.N. High

Commission for Refugees has specifically advised that

unaccompanied children “should not be detained.”584 In

exceptional circumstances where children are in detention,

detention must be used only as a last resort, for the shortest

appropriate time, and with additional safeguards to ensure

a child’s safety and welfare.585

To ensure that unaccompanied children are able to seek

asylum, human rights law recognizes that states must

provide a meaningful way for children to seek protection

and that children must be screened by officers with

particular training. Examining Portugal’s treatment of

unaccompanied minors, the U.N. Committee on the

Rights of the Child specifically expressed concern that

unaccompanied children face “lengthy and inadequate

procedures” conducted by persons without adequate

training to address the specialized needs of unaccompanied

minors.586

The Committee has also raised concerns where

unaccompanied children with possible international

protection needs are automatically turned away as

“economic migrants” based on national origin and without

assessment of the risks they may face (thus potentially

violating non-refoulement obligations).587 For Mexican

children who are summarily repatriated without a hearing,

the right to be free from discrimination on the basis of

national origin should ensure those children have an equal

opportunity to claim protection in the United States and

are not unfairly expelled on the basis of national origin.

This issue of unfair treatment in access to immigration

relief, based on national origin, has previously been

considered by the Inter-American Commission for Human

Rights (IACHR). Evaluating the interdiction and summary

return of Haitians by U.S. authorities, the IACHR held that

the United States had violated their right to freedom from

discrimination, as a significantly more favorable policy was

applied to Cubans and Nicaraguans.588

For children who are able to get an immigration hearing,

U.S. law provides insufficient safeguards to ensure they can

actually present their case and defend against deportation,

although U.S. constitutional law acknowledges that

children need additional assistance and protections when

Today, many children are alone, without representation, while facing incredibly complex legal proceedings.





E. THE RIGHT TO FAMILY UNITYFor non-citizens deported after many years in the United

States, where they have formed families and other

community ties, deportation is a harsh event whose effects

ricochet through the family.598 Human rights law recognizes

the central importance of the family and that “[t]he family

is the natural and fundamental group unit of society and is

entitled to protection by society and the State.”599

Children residing in the United States whose parents are

non-citizens deported without a chance to defend against

deportation are also harmed by these processes. Article 9

of the CRC requires that “State Parties shall ensure that a

child shall not be separated from his or her parents against

their will, except when ... such separation is necessary for

the best interests of the child.”600 In summary removal

procedures, it does not appear that DHS officials are even

inquiring whether a person has children in the United

States or taking that information into account to refer the

person for a hearing in which the equities can be weighed.

Several individuals profiled in this report were the parents

of U.S. citizen children; deportation forced them to choose

between defying the order, separation from their children,

and taking their children with them to a place that may

have been dangerous. Some parents we spoke with said they

could not bring their children to the dangerous countries

to which they were deported and, as a result, felt they had

to return to United States even without permission.

Article 17(1) of the International Covenant on Civil and

Political Rights (ICCPR) further requires that no one shall

be “subjected to arbitrary or unlawful interference with

his privacy, family, home or correspondence.” Article 23

of the ICCPR recognizes that “[t]he family is the natural

and fundamental group unit of society and is entitled to

D. LIMITATIONS ON DETENTIONAlthough many people processed through a summary

removal procedure are quickly deported and will not remain

in detention for long, other may be detained for weeks or

months awaiting removal and without the opportunity to

request release or review of their case. For example, individuals

applying for asylum or individuals who are awaiting

repatriation but where the United States is having difficulty

securing travel documents are subject to mandatory detention.

International law requires that any person detained should

be provided with a prompt and effective remedy before an

independent judicial body to challenge the decision to detain

him or her.591 Every decision to keep a person in detention

should be open to review periodically.592 The Human Rights

Committee, which interprets the ICCPR, has explicitly held

that the right to be free from arbitrary deprivations of liberty

includes immigration detention.593 Human rights law prohibits

the mandatory application of detention to immigrants

without individualized review.594 The state bears the burden

of demonstrating that detention is necessary for the particular

immigrant detained, given that individual’s circumstances.595

The United Nations Working Group on Arbitrary Detention

recognizes “the sovereign right of states to regulate migration”

but recommends that “immigration detention should

gradually be abolished.... If there has to be administrative

detention, the principle of proportionality requires it to be

a last resort.”596 The recent move by the U.S. government to

create more detention for families and children is a move in

the opposite direction.

While many people processed through summary removal

procedures will not be detained for a long period of time and

are quickly removed, those with claims that they defend—for

example, asylum seekers—may spend months or years in

detention even if they pose no risk or danger. Individuals who

are referred for a credible or reasonable fear interview are

detained while they await an interview and then while their

case is adjudicated. The prolonged detention of asylum seekers

awaiting credible or reasonable fear interviews and then a date

in court violates international human rights law, particularly

when those individuals are not permitted to apply for release

and have their individual circumstances reviewed.597

The Human Rights Committee has recognized an explicit limitation on deportations that would separate a family.





protection by society and the state,” and that all men and

women have the right “to marry and to found a family.”

The right to establish a family includes the right “to live

together.”601 The Human Rights Committee, interpreting

the ICCPR, recognized an explicit limitation on a state’s

ability to deport and so separate a family.602 In Winata

v. Australia, for example, the Human Rights Committee

held that the deportation of an Indonesian couple who

had an Australian citizen child violated human rights law,

noting that the family’s ties to Australia and the impact

on the Australian-born son from deportation would

implicate the family’s right to be free from interference

under international law—and the child’s right to necessary

protective measures.603

While all deportation processes may lead to a rupture

in family life for individuals with family in the country

expelling them, deportations that occur without a hearing

are more likely to disrupt families, in part because of the

speed with which these deportations occur but also because

these processes do not recognize family unity as factor

affecting either relief from deportation or eligibility for a

hearing. Summary removal procedures that do not allow

consideration of the equities of an individual’s case—in

particular, their family ties in the United States—violate

human rights law both in denying the individual the

opportunity to present defenses and in discounting family

relationships completely. As a result, some individuals who

might win relief from removal in immigration court, where

they can also present evidence of their family ties and

where those ties may make them eligible for discretionary

relief, are instead deported with significant consequences

for the individual deported and the children left behind.





A. General Recommendations

1. Regarding the Use of Summary Removals

a. DHS should institute a basic screening tool to apply to all non-citizens,

regardless of where or by which agency they are apprehended, that will

identify individuals:

i. Who have U.S. citizen or lawful permanent resident family or

family with other lawful status, including Deferred Action for

Childhood Arrivals (DACA);

ii. Who may have non-frivolous claims to U.S. citizenship;

iii. Who have mental disabilities;

iv. Who may be eligible for asylum, withholding of removal, protection

under the U.N. Convention Against Torture, Temporary Protected

Status, or U or T visas;

v. Who may be eligible for prosecutorial discretion;

vi. Who may be eligible for DACA; and

vii. Who are children (i.e., under 21 years of age; see INA § 101(b)).

b. For individuals who are identified under this basic screening tool, DHS

should either exercise discretion not to initiate any enforcement action or

refer them for an immigration hearing under INA § 240.

c. DHS should train and retrain its officers against using threats,

misinformation, or coercion to force an individual to sign a summary

removal order; discouraging an individual from pursuing a claim for relief; or

convincing an individual to waive his or her right to a hearing before a judge

or to an appeal, where such right exists. DHS officers should not provide any

legal information or advice beyond that required on the relevant forms or

under applicable law. In particular, DHS officers should not:

i. Speculate about the strength or weakness of an individual’s claim;

RECOMMENDATIONS TO THE DEPARTMENT OF HOMELAND SECURITY (DHS)





ii. Engage in misrepresentation or misinformation regarding an

individual’s eligibility for relief or ability to apply for relief from

outside of the United States;

iii. Provide information about U.S. law such as what claims qualify for

asylum, whether or not asylum exists, and whether an asylum claim

can be made by an individual from a certain country;

iv. Make threats or claims about the impact on an individual’s family

in the United States should the individual fail to sign a removal

order; or

v. Speculate about the length of time an individual will spend in

detention should he or she apply for relief.

d. DHS should have a stringent disciplinary process in place for officers who

engage in any of the activities mentioned in A.1.c. Officers accused of

engaging in these coercive and inappropriate activities should be reassigned

to duties where they will not have contact with non-citizens to determine

their removability, pending the outcome of an internal investigation.

Officers found to have knowingly engaged in these activities should be

terminated. In cases where an officer is found to have engaged in these

practices, DHS should withdraw the removal order, inform persons affected,

and reassess individual cases, even if individuals have already been deported.

e. DHS should video-record all summary removal proceedings, and a copy of

that recording should be maintained in the individual’s A-File. DHS officers

must inform individuals that their statements are being recorded and could

potentially be used against them.

f. DHS should promulgate regulations requiring that all summary removal

orders be promptly provided in writing in the primary language spoken by

the person subject to the order and that the order and its consequences be

explained to the individual by an independent interpreter, where necessary,

or, if interpretation is not necessary, by a DHS employee who is not affiliated

with an enforcement agency.

g. DHS should not demand that individuals sign forms that have already been

filled out to accept a summary removal order or otherwise waive their right

to a hearing before a judge or to an appeal.

h. DHS should provide individuals with current contact information for their

consulates and for legal services providers, and must ensure that individuals

are permitted to call at no charge and consult with their consulates and a

legal services provider prior to signing a summary removal order.

i. DHS supervisors should be involved in determining whether each individual

signing a removal order is competent to understand the order and the rights

waived. If there is any question as to a person’s competence to sign a removal





order and waive his or her rights, based on age, disability, medical condition, or

any other factor, DHS should refer the individual for a full immigration hearing.

j. DHS should develop a complaint process for individuals who allege unfair or

abusive treatment, which would provide for a prompt and detailed response

to the complaint and would also analyze complaints to identify problematic

trends and practices that need to be addressed through training or other

corrective action.

k. Periodic audits by an independent monitor should be ordered to ensure

compliance with applicable law and the above screening, and to identify

individual officers who consistently fail to comply with the law, regulations,

and policies for implementing the screening tool and ensuring fair and

appropriate conduct. The monitor should have access to a statistically

significant sampling of video-recordings and summary removal orders in

conducting his or her review.

2. Detention of Individuals Facing Summary Removal

To ensure that individuals facing summary removal from the United States are

able to exercise their rights and are not compelled to abandon them due to a

coercive and harmful environment, DHS must do the following:

a. Create an office for CBP detention operations, planning, and oversight, and

implement routine and transparent independent monitoring of short-term

detention facilities. This office should make reports based on these inspections

available to the public and Congress.

b. Create enforceable detention condition standards for CBP facilities and make

those standards publicly available.

c. Detain individuals only as a last resort and for the shortest time necessary,

with regular review of the necessity and appropriateness of continued

detention.

d. Release asylum seekers who have passed their credible fear interviews as soon

as possible.

e. Remove unaccompanied children and families with children from detention

as soon as possible, and place requests for additional funds to expand

alternatives to detention of families.

f. Ensure that all individuals are provided with humane treatment and basic

necessities when detained, including the following:

i. Adequate food and water.

ii. Medical care, including adequate medical screenings in both CBP

and ICE detention and prescription medications for preexisting

conditions.





iii. Appropriate temperature control and lighting, taking into

account the clothing individuals are wearing, their physical

activity levels in detention, and any requests detainees make for

temperature changes.

iv. Access to toilet and shower facilities, with sufficient privacy

to prevent avoidable viewing of detainees while showering,

performing bodily functions, or changing clothing.

v. Blankets and bedding.

vi. Hygiene and sanitary items.

g. Address immediate physical and mental health needs using qualified

medical professionals.

h. Ensure that all facilities where DHS detains individuals, for whatever length

of time, should be publicly identified and subject to regular independent

inspections.

i. Fully implement the Prison Rape Elimination Act (PREA) at all CBP

facilities and expedite the PREA requirement of comprehensive training for

all officers and agents who encounter detainees in holding cells.

j. Ensure detainee access to telephones within two hours of arrival at any DHS

facility and at all other times an individual is detained, except during counts,

meals, and the time designated for sleeping; calls to legal services providers

and consulates should be provided at no cost to detainees.

k. Ensure that attorneys are given broad access to detainees, including current

and potential clients, and a private space in which to interview them; access

should be provided at all times other than during counts, meals, and the

time designated for sleeping.

l. Require CBP to develop a detainee locator system for short-term custody,

similar to the ICE detainee locator system, to allow counsel and family

members to determine where individuals are being held.

m. Create a free, confidential emergency hotline in each facility so that

individuals can call to report abuse 24 hours a day, including sexual assault

by CBP, ICE, or any other DHS official; the hotline number should be

publicly displayed in a location consistently visible to detainees, along with

information on reporting assaults, which should be posted in multiple

languages reflecting those spoken by the detainee population. Ensure that

lawful, nonperishable personal belongings of an individual in CBP custody

are returned to the individual upon the individual’s removal or release from

CBP custody.





B. Expedited Removal

1. To the extent DHS continues to use expedited removal, it should cease to use

expedited removal against the following:

a. Individuals who are prima facie eligible for relief from removal or

prosecutorial discretion and, instead, parole such individuals into the

United States for removal proceedings before an immigration judge;

b. Children; and

c. Individuals who have entered the United States.

2. DHS should record all expedited removal proceedings, including credible fear

interviews.

3. DHS should train its staff that an expedited removal order should never be

issued against an individual arriving in the United States with facially valid

travel documents that authorize entry to the United States. If the examining

DHS officer believes the individual intends to immigrate or act in some way

that contravenes their facially valid visa, the officer should allow the person

to withdraw their application for admission or refer the individual to an

immigration judge for regular removal proceedings.

4. DHS should refrain from issuing an expedited removal order that includes a

finding of fraud or a false claim to U.S. citizenship. If DHS chooses to pursue

those charges, it should refer the individual so charged to an immigration judge

for a removal hearing under INA § 240.

5. Promulgate regulations requiring that expedited removal orders be promptly

provided in writing in the primary language spoken by the person subject to the

order and that the order and its consequences be explained to the individual by a

competent interpreter, where necessary, in a language they understand.

C. Reinstated Orders of Removal

1. In addition to persons who, under the basic screening tool, DHS should not be

processing through reinstatement, DHS should also decline to reinstate orders

of removal, and instead refer individuals for full hearings under INA § 240 when

the non-citizen meets any of the following:

a. Is under 21 years of age or was not yet 21 at the time of his or her prior

deportation;

b. Has lived in the United States for 5 years;

c. Has U.S. citizen, LPR, or DACA-approved children, parents, or a spouse;





d. Is being subjected to reinstatement for a removal order that was

previously issued in a summary removal;

e. Is an asylum seeker or may possess a non-frivolous claim to withholding

of removal and/or protection under the U.N. Convention Against Torture;

f. Has a significant mental disability; or

g. May be eligible for other relief from removal or prosecutorial discretion.

2. DHS should adopt a formal policy, and issue guidance, that if an underlying

removal order has been invalidated in a U.S. court, including but not limited

to illegal reentry proceedings under 8 U.S.C. § 1326, the prior order will not be

reinstated.

3. DHS should adopt a formal policy, and issue guidance, that if the legal basis for

the underlying removal order has subsequently been invalidated through a change

in law, the prior order will be vacated, not reinstated.

4. DHS should recognize that, consistent with INA § 208, individuals in

reinstatement of removal proceedings are eligible to apply for asylum as well as

withholding of removal.

5. DHS should promulgate regulations requiring that reinstatement orders be

promptly provided in writing in the primary language spoken by the person

subject to the order and that the order and its consequences be explained to

the individual by a competent interpreter, where necessary, in a language the

individual understands.

6. DHS should require that when its officers ask individuals facing removal if they

fear returning to their country of origin, they do so in the primary language the

person understands.

7. Before a reinstatement order is issued, DHS should allow the non-citizen an

opportunity to file a non-frivolous motion to reopen the underlying removal order.

D. Administrative Voluntary Departure (Voluntary Return)

1. DHS should create a multilingual informational video, with input from

nongovernmental stakeholders, that an individual must watch before accepting

voluntary return.

2. DHS should modify the forms used in the voluntary return process to include

information about all legal consequences of voluntary return and ensure that all

individuals are provided such forms in the primary language they understand.

3. DHS should provide oral notice of rights and advisals of voluntary return’s

consequences in the primary language that the individual understands.





4. Before completing processing of an individual for voluntary return, DHS should

provide a two-hour window for that individual to use a phone at no charge to

attempt to contact a family member, a legal services provider, or the consulate of

their country of origin.

5. DHS should prominently post a multilingual notice of rights and current

phone numbers for legal services providers in all facilities where individuals are

processed for voluntary return, and it should do so in a manner that is regularly

accessible to those individuals.

6. All immigration enforcement officers should recognize they have discretion to

allow individuals taking voluntary return to have up to 120 days to depart from

the United States, and they should exercise that discretion unless individual

circumstances deem otherwise.

7. DHS should train and retrain officers to emphasize that they may not attempt to

influence the decisions of individuals being given the option of voluntary return.

8. DHS should create a meaningful way for individuals who believe that

their voluntary returns were unfair to have their cases reexamined and, if

substantiated, for the individuals to be returned to the United States and placed

in the situation they were in before taking voluntary return.

E. Administrative Orders of Removal (INA § 238(b), or “238b”)

1. DHS should initiate the administrative removal process only after a person

has completed his or her criminal sentence and been transferred to ICE, or

alternatively ensure that the individual has the opportunity to meet with

immigration legal services and complete any appeals of his or her criminal

conviction prior to the initiation of the administrative removal process. To the

extent that an individual is eligible for early release from a criminal sentence on

condition that he or she agrees to administrative removal, DHS must provide the

individual with an advisal of the consequences of such a removal order and a list

of immigration legal services with which he or she can consult prior to making

such a decision so he or she is aware of any potential challenges to removal he or

she may be forfeiting.

2. Given the complexity of immigration law and the unstable list of crimes

considered an aggravated felony, DHS should require that an individual placed

in 238b proceedings be given a meaningful opportunity to consult with an

expert in criminal immigration law who can help the individual evaluate

whether his or her crime is an aggravated felony or other designated removable

offense such as a crime involving moral turpitude (CIMT).

3. DHS should decline to use administrative removal and instead refer an

individual to removal proceedings under INA § 240 whenever (1) there is a non-





frivolous basis for questioning whether the underlying crime is an “aggravated

felony” or other designated offense that triggers administrative removal; (2)

conviction records are either inconclusive or unavailable; or (3) the individual

would be prima facie eligible for discretionary relief from removal were he or she

placed in regular removal proceedings under INA § 240.

4. DHS should provide individuals in 238b proceedings with information both

verbally and in writing, in the primary language that they speak, about forms

of relief they may be eligible for as well as the categories of individuals who are

statutorily exempt from removal under INA § 238(b).

5. DHS should ensure that a full record of the administrative removal proceeding is

created, maintained, and provided at no charge to the individual.

6. DHS should ensure that all officers involved in the administrative removal process

are given regular, specialized training on what crimes constitute aggravated

felonies or the other offenses designated as triggering administrative removal, and

additional training and materials whenever the relevant law changes.

F. Stipulated Orders of Removal

1. DHS should refrain from issuing stipulated orders of removal to immigrants

unless they have a hearing before an immigration judge to assess for relief

eligibility and ensure that they have agreed to the order knowingly and voluntarily.

2. DHS should advise all individuals of their entitlement to request a prompt bond

hearing before an immigration judge whether or not they elect a stipulated

removal order.

3. DHS should refrain from issuing stipulated orders of removal where an individual

is prima facie eligible for relief from removal or prosecutorial discretion, unless

such individual is represented by counsel and explicitly waives in writing,

knowingly and voluntarily, his or her opportunity to seek such relief or exercise of

discretion.

G. Special Protections for Children

1. DHS should ensure that unaccompanied children, in keeping with federal law, are

transferred out of DHS custody and into ORR care, optimally within 24 hours but

no later than 72 hours after their apprehension.

2. DHS should develop a multilingual informational video for children that explains

to them what their rights are when they are apprehended and facing removal, and

DHS should require its officers to show the video to children before accepting

their voluntary return.





3. DHS should use an outside agency or local nongovernmental organization

with specialized experience in working with immigrant children to undertake

the immediate screening and interviewing of unaccompanied minors from

Mexico or Canada that is required under current law within 48 hours of

their apprehension by DHS. In the interim, USCIS staff can undertake

this responsibility. In consultation with child protection experts and child

psychologists, DHS should revise CBP Form 93 and Form I-770 and create

a uniform, mandatory, and comprehensive list of screening questions for

children from Mexico or Canada who, under the TVPRA, can take voluntary

return only if DHS makes an individualized determination pursuant to

8 U.S.C. § 1232(a)(2) that each child (1) has not been a victim of a severe form

of trafficking in persons, and there is no credible evidence that such child is at

risk of being trafficked upon return to his or her home country; (2) does not

have a credible fear of persecution in his or her home country; and (3) is able to

make an independent decision to withdraw his or her application for admission

to the United States.

4. DHS should employ child welfare experts and/or child psychologists to conduct

one-on-one screenings of Mexican and Canadian unaccompanied minors

within 48 hours of their apprehension in order to assess each of the three factors

listed in § 1232(a)(2) (regarding trafficking, credible fear, and independent

withdrawal).

5. DHS, in conducting such screenings, should bear the burden of affirmatively

demonstrating each of the three factors listed in § 1232(a)(2), and should

require that, in cases where there is any doubt with respect to any of the three

factors, its officers transfer the child to ORR care and refer the child for an

immigration hearing.

6. With respect to the third factor listed in § 1232(a)(2) (independent withdrawal),

DHS should ensure a child is not deemed competent to make an independent

decision to return to their home country unless he or she is informed and

understands that (a) he or she will be transferred to ORR custody and receive

appropriate shelter, care, and services if he or she chooses to refuse return; (b) he

or she has a right to see a judge if DHS chooses to pursue removal; and (c) he or

she will have an opportunity to apply for forms of relief that may permit him or

her to stay in the United States.

7. In the event that screening of an unaccompanied minor from Mexico or Canada

pursuant to § 1232(a)(2) cannot or does not take place within 48 hours of the

child’s apprehension, DHS must, under the TVPRA, transfer that child to ORR

custody, and if it wishes to pursue removal of that child, it must refer him or her

for an immigration hearing.

8. DHS should ensure that any screenings or interviews with children take place

in an appropriate, child-friendly setting that is designed to make children

feel safe and comfortable, and that does not resemble a typical jail cell or law

enforcement interrogation room.





9. DHS should provide regular and specialized training for all officers who interact

with unaccompanied minors on children’s rights in the immigration system,

the appropriate way to interact with children, and language that should not

be used with children that may deter them from seeking protection in the

United States or that may create an atmosphere of mistrust, fear, coercion, or

misunderstanding.

10. DHS should expand the jurisdiction of the existing USCIS ombudsman and

require that he or she routinely inspect the facilities in which children are held

and ensure children are treated humanely by DHS staff and not subject to any

threats, misrepresentation, or coercion.

11. DHS should ensure that all children have the opportunity to speak with a parent,

guardian, or other adult advocate in a confidential setting before they are given

any forms to sign or permitted to accept voluntary return.

12. DHS should ensure that all children have the meaningful opportunity to consult,

in person or via phone, with a person entitled to represent others in immigration

proceedings, as defined in 8 C.F.R. § 1291.1, an employee of a nonprofit services

provider, or a child welfare specialist—prior to being permitted to accept

voluntary return.





TO THE DEPARTMENT OF JUSTICE (DOJ)A. On Prosecutions for Immigration Crimes

1. Asylum seekers should not be punished for seeking admission to the United

States. To that end, the Department of Justice should do the following:

a. Ensure that individuals referred for a credible fear or reasonable fear

interview or who claim fear of returning to their country of origin

before or during their prosecution for illegal entry or reentry are not

prosecuted until after they have completed a credible fear or reasonable

fear interview, pursued their asylum claim in immigration court, and

exhausted the appeal process, should they wish to do so.

b. Ensure that asylum seekers are not prosecuted for use of false

documents by ensuring that asylum seekers are first allowed to pursue

asylum relief; if and only if they are found not to have an asylum claim

(after an asylum interview, pursuing relief in immigration court, and

exhausting appellate remedies) should a person making a frivolous or

fraudulent asylum claim be prosecuted for use of false documents to

obtain admission.

2. To ensure a more judicious use of prosecutorial resources, the Department of

Justice should:

a. Direct U.S. Attorneys to de-prioritize 8 U.S.C. § 1325 (illegal entry)

and 8 U.S.C. § 1326 (illegal reentry) prosecutions except in specific

cases where such charges advance one of the Department’s current

prosecutorial interests: national security, violent crime, financial fraud,

and protection of the most vulnerable members of society.

b. Direct U.S. Attorneys not to initiate § 1325 or § 1326 charges against

individuals who are currently under the age of 18 or who were under

the age of 18 at the time of their prior removal from the United States.

c. In the case of violent crime, direct U.S. Attorneys to pursue § 1325

or § 1326 charges only against individuals who have convictions for

serious, violent felonies and whose sentences for those felonies were

completed within the previous five years.





d. Prosecutors should exercise discretion not to pursue a § 1326 charge

when the nature of the prior removal order, prior entry conviction, or

prior reentry conviction that justifies such a charge presents significant

due process concerns.

e. Prosecutors should not pursue a § 1326 charge where the individual’s

prior removal order was a summary removal order.

f. Prosecutors should exercise discretion not to pursue § 1325 and

§ 1326 charges against certain vulnerable categories of individuals

(for example, victims of domestic violence and the elderly) or against

individuals with significant U.S. ties (for example, individuals with

U.S. citizen or lawful permanent resident spouses, parents, or minor

children, and individuals who are or are related to veterans and

members of the U.S. Armed Forces).

g. DOJ and DHS should end the practice of appointing Border Patrol

attorneys or other DHS employees to act as Special Assistant U.S.

Attorneys, or in any prosecutorial capacity, in § 1325 and § 1326 cases.

B. Executive Office for Immigration Review

1. Consistent with INA § 208, permit individuals in the reinstatement of removal

or administrative removal process to apply for asylum, not just withholding of

removal or CAT relief.

2. Ensure that all individuals who accept stipulated removal orders be brought

before an immigration judge within 48 hours—or at most within 7 days—to

ensure that they are knowingly and voluntarily waiving their right to a removal

hearing before an immigration judge.

3. Provide regular and specialized training for all court officers who interact with

unaccompanied minors on children’s rights in the immigration system, the

appropriate way to interact with children, and language that should not be used

with children that may deter them from seeking protection in the United States.

4. Provide appointed counsel to all children facing removal from the United States

who go before an immigration judge.





TO THE DEPARTMENT OF STATE1. Issue guidance for all consular processing offices clarifying that for individuals who have been

unlawfully deported from the United States, consular offices are authorized to immediately

issue travel documentation and proof of residency so those individuals may return to the

United States.

2. Issue guidance for all consular processing offices explicitly authorizing consular officers to (1)

review and override an expedited removal order, where officers believe the expedited removal

order was erroneous; and (2) to immediately issue both a new visa and a I-212 waiver for the

individual.

TO CONGRESSA. Expedited Removal

1. Amend INA § 235(b) to expressly prohibit the use of expedited removal against

children, persons with disabilities, individuals apprehended within the United

States (including individuals apprehended within 100 miles of the border), and

individuals arriving at ports of entry after a brief trip outside the United States but

who have been in the United States for at least two years prior to their departure.

2. Amend INA § 235(b) to expressly allow an individual placed in expedited

removal proceedings to be represented by counsel during all stages of the process

and to require immigration officers to inform the individual of that right before

subjecting them to the process.

3. Amend INA § 235(b) to permit review commensurate in scope with that

provided for removal orders in the Court of Appeals by petition of review.

4. Amend INA § 242(a)(2)(D) (8 U.S.C. § 1252(a)(2)(D)) to clarify that nothing

in Section 242(a)(2)(A) precludes judicial review of constitutional claims or

questions of law relating to an expedited removal order, including challenges to

unwritten policies and procedures.

5. Amend INA § 242(e)(3) to clarify that the 60-day deadline runs from the time

an expedited removal order is applied to an individual.





B. Special Protections for Children

1. Expressly provide for appointment of counsel to all children facing removal from the United States.

2. Expressly require that all children see an immigration judge prior to removal, voluntary or otherwise, from the United States and that they be given adequate time and resources to prepare their cases.

3. Expressly require that children arriving in the United States with or without their parents be released to less restrictive alternatives to detention while going through the immigration enforcement process. Require that children be transferred out of CBP custody as quickly as possible and that in no case they be held in CBP custody beyond 72 hours. Clarify that an increase in the number of children arriving in the United States is not an “exceptional circumstance” under the TVPRA that can justify extending the detention of a child in CBP custody and delaying their transfer to ORR custody beyond 72 hours.

4. Amend 8 U.S.C. § 1232(a)(2) of the TVPRA so that all unaccompanied children, including those arriving from contiguous countries, are treated equally and fairly, with automatic transfer into ORR custody within 72 hours and the right to a hearing before an immigration judge. Expressly prohibit DHS from allowing unaccompanied children from any country to accept voluntary return without a hearing at which the child is represented by counsel.

5. Expressly require that children who state a desire to return to their home country to DHS or ORR officials receive a prompt hearing before an immigration judge within 48 hours of such statement. Require that the immigration judge fully advise the child of his or her rights and of the availability of forms of immigration relief, including but not limited to a T visa, U visa, SIJS, or asylum. Provide that if the child, following such advisal by the immigration judge, makes an informed and independent decision to return to his or her home country, the immigration judge may grant voluntary departure.

C. Other Recommendations to Improve Fairness in Removals

1. Amend INA § 240(d) to explicitly require that any individual who signs a stipulated order of removal be brought before an immigration judge before the order is entered.

2. Appropriate funds to EOIR to provide appointed counsel to all children facing removal.

3. Appropriate funds to EOIR to hire additional immigration judge teams in order to clear the nationwide backlog in immigration courts.

4. Create a pilot project that assigns immigration judges to designated international airports in the United States, including but not limited to airports serving New York City, Los Angeles, Houston, Miami, and Detroit, so that immigration judges could immediately conduct hearings for individuals whom CBP officers suspect are inadmissible, rather than having CBP issue expedited removal orders.





Consequence Delivery System (CDS) describes several

instruments utilized by the Department of Homeland

Security to deter unauthorized entry and reentry to the

United States through civil and criminal penalties. Some

of these mechanisms include the use of summary removal

orders; referral for criminal prosecution for illegal entry or

reentry; and “lateral deportation” or “remote repatriation,”

where a Mexican national arrested at the U.S. border is

deported to a location far from where he or she entered the

United States.

Convention Against Torture (CAT) is an international

human rights treaty, signed and ratified by the United

States in 1994, that obligates countries that have signed

it to prohibit and prevent torture and cruel, inhuman, or

degrading treatment or punishment in all circumstances.

In immigration proceedings, CAT protections such as

withholding of removal and deferral of removal ensure that

individuals are not returned to places where they would

face torture.

Convention Relating to the Status of Refugees

(Refugee Convention) is an international human rights

treaty that has been implemented into U.S. law through

INA § 208. The Refugee Convention requires that asylum

seekers not be penalized for their illegal entry or presence

and that they be given the opportunity to seek asylum; it

prohibits the expulsion of asylum seekers to places where

they face persecution.

Credible Fear Interview (CFI) is a threshold interview

conducted by an asylum officer for individuals subject

to expedited removal who claim fear of persecution or

torture if returned to their country of origin. The asylum

officer then determines whether the claim is sufficiently

meritorious that the individual can receive a full asylum

hearing in court; if the officer decides the non-citizen’s fear

is not “credible,” the non-citizen can be removed through

expedited removal.

GLOSSARY OF TERMSAdministrative Removal (or “238b removal”), authorized

by INA § 238(b), is a summary removal procedure that can

be used to issue a removal order to a non-citizen who is

not a lawful permanent resident in the United States and

who has been convicted of an aggravated felony or other

qualifying offense under immigration law. These orders

are issued by an immigration officer, sometimes while the

individual is still in criminal custody.

Aggravated Felony is a category of crimes, listed

in the Immigration and Nationality Act (INA) at

8 U.S.C. § 1101(a)(43), that trigger severe penalties for

non-citizens, making them deportable and ineligible for

most forms of relief from removal. The crimes considered

“aggravated felonies” include crimes that, under state

criminal laws, are not necessarily felonies and may not

even include a term of imprisonment. The INA identifies

21 types of crimes in the aggravated felony category

ranging from tax evasion to rape, and what is considered

an aggravated felony varies in accordance with state law.

Some aggravated felonies do require that the individual

was sentenced for a period of 365 days or more for the

crime to constitute an aggravated felony—for example,

burglary, a crime of theft, or a crime of violence. Even if

the person never actually served any time in prison for the

offense—for example, if the person receives a “suspended

sentence” from a criminal court but is not required to serve

all or any part of that sentence in prison—his or her crime

can be considered an aggravated felony.

Asylum is a type of relief from deportation; it is given to

qualified applicants who fear returning to their country of

nationality because of past persecution or a well-founded

fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political

opinion. Individuals granted asylum can petition for their

family members to come to the United States and may

apply for lawful permanent residence and, ultimately,

citizenship.





Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) is a federal law that

significantly altered immigration law and procedures.

One of its most consequential changes was to create

expedited removal at the U.S. border so that individuals

who previously would have been given an immigration

hearing if they arrived without proper travel documents

could instead be deported by immigration officers without

a hearing.

Illegal Reentry is a federal crime and is the reentry into

the United States of an individual who has previously

been deported and has not been given permission to

reenter the United States. Illegal reentry is a felony under

8 U.S.C. § 1326 and is punishable by up to 20 years in

prison.

Immigration and Customs Enforcement (ICE) is an

agency under the Department of Homeland Security

responsible for arresting, detaining, and prosecuting

non-citizens accused of violating immigration law in

immigration court.

Immigration and Nationality Act (INA) is the basic body

of immigration law in the United States. Passed in 1952 and

amended numerous times since then, the INA collected,

codified, and structured the extant U.S. immigration laws.

Inadmissible is an immigration law term that describes

a non-citizen who is not eligible to be admitted to the

United States under U.S. immigration law because he or

she lacks valid admission documents or based on certain

characteristics such as prior immigration violations,

criminal history, or medical conditions.

Lawful Permanent Resident (LPR) (also known as a

“green card holder”) is a non-citizen authorized to live and

work in the United States on a permanent basis.

Customs and Border Protection (CBP) is a law

enforcement agency within the Department of Homeland

Security and includes several components, including the

Office of Field Operations (OFO) and Customs and Border

Patrol (“Border Patrol”). OFO is responsible for border

security, including screenings, inspection, and admission at

ports of entry. Border Patrol, which operates beyond ports

of entry within 100 miles of U.S. international borders,

arrests individuals whom it suspects of unlawfully entering

the United States. Both Border Patrol and OFO arrest,

detain, and deport individuals through summary removal

procedures like expedited removal.

Deportation or “removal” under the Immigration and

Nationality Act is the forcible expulsion of a deportable

or inadmissible non-citizen from the United States with

a formal removal order issued either by an immigration

officer or an immigration judge. Throughout this report,

the terms “deportation” and “removal” are used for

individuals deported with a removal order; individuals

who take voluntary return, which requires he or she leave

the country and also comes with civil consequences should

the individual return to the United States, are referred to

as “returning” or being “repatriated” to their countries of

origin.

Expedited Removal, authorized under INA § 235,

is a summary removal procedure that applies to

all unauthorized immigrants at ports of entry and

unauthorized immigrants found within the United States

and within 14 days of arrival if arrested within 100 miles of

the U.S. international border. Expedited removal involves a

formal removal order issued by an immigration officer or

Border Patrol agent and includes a minimum five-year ban

on reentering the United States.

Illegal Entry is a federal crime and is the unauthorized

entry into the United States without being inspected and

admitted by an immigration officer. It is a misdemeanor

under 8 U.S.C. § 1325 and is punishable by up to 6 months

in federal prison.





Relief from Removal is a type of immigration benefit

granted to an individual, although technically “removable”

because of his or her immigration status and other factors,

when the government determines he or she should not

be deported and should be allowed to stay in the United

States based on equitable factors recognized in the INA

such as length of residence and family ties. While relief is

discretionary, some individuals cannot be deported even

if they are “removable” (e.g., an unauthorized immigrant

or a lawful permanent resident who has been convicted of

certain crimes) because he or she would face persecution

or torture if removed to his or her country of origin. This

is not considered “relief,” as it is mandatory in keeping with

U.S. law and obligations.

Stipulated Order of Removal, authorized under

INA § 240, is a type of summary removal in which a non-

citizen accepts his or her deportation and waives arguments

to relief or to dispute his or her removability. It is reviewed

and signed by an immigration judge; however, immigration

judges are not required to meet with the individual taking a

stipulated order or to question him or her in person.

Summary Removal Procedures are processes by which

immigration enforcement officers of the Department of

Homeland Security order a non-citizen deported from

the United States or process a non-citizen to be returned,

without a formal removal order, to their country of

origin. These procedures do not involve a judge or a full

hearing but in many cases have the same consequences—

deportation, bars on reentry, and penalties for returning

without authorization—as a removal order issued by a

judge from the Department of Justice after a full hearing.

Summary removal procedures include expedited removal,

reinstatement of removal, administrative removal (238b),

stipulated orders of removal, and voluntary return.

Non-Refoulement Obligation (“non-refoulement”)

under Article 3 of the Convention Against Torture is a

legal requirement, binding on the United States through

the Foreign Affairs Reform and Restructuring Act of

1998 (“FARRA”). Non-refoulement requires that the U.S.

government not expel, extradite, or involuntarily return a

person to a country in which there are substantial grounds

for believing that he or she would be in danger of being

subjected to torture.

Notice to Appear (NTA) is the “charging document” issued

by Immigration and Customs Enforcement to a person

whom the U.S. government seeks to deport from the

United States by means of a regular removal hearing before

an immigration judge. The NTA starts the immigration

case, in court, against a non-citizen.

Operation Streamline, currently in effect in four judicial

districts, is a “zero-tolerance” program that requires

the federal criminal prosecution and imprisonment of

all unlawful border crossers. Judges combine the initial

appearance, arraignment, plea, and sentencing into

one mass hearing for the 70–80 defendants processed

daily. Attorneys are often not provided until courtroom

appearances.

Reasonable Fear Interview (RFI) is an interview

conducted by an asylum officer for non-citizens who have

a fear of persecution or torture in their country of origin

but who have either a prior order of removal or have been

convicted of certain offenses. These individuals, in the

government’s view, are not entitled to asylum and can

receive only less permanent protection with fewer benefits.

As in the credible fear process, an asylum officer determines

whether the non-citizen’s claim is sufficiently meritorious

that he or she should receive a hearing in court on his or

her claim for protection.

Reinstatement of Removal, authorized under

INA § 241(a)(5), is a summary removal order that

may be issued to individuals who previously received a

formal removal order, departed the United States, and

subsequently returned to the United States without

permission from the U.S. government. These orders are

issued by immigration officers, not judges.





Withholding of Removal is a form of protection stemming

from U.S. obligations under the Convention Against

Torture and the Refugee Convention that prevents the

return or removal of a person to a country where he or

she faces torture or persecution. This protection does

not include all the benefits of asylum, such as the right to

petition for one’s children to come to the United States, and

is not a permanent status, nor does it lead to permanent

status in the United States.

Trafficking Victims Protection Reauthorization Act

(TVPRA) is a federal law that provides several protections

for victims of trafficking and includes critical safeguards

for unaccompanied children entering the United States.

In particular, the TVPRA requires that unaccompanied

children from “noncontiguous countries” go before an

immigration judge to have their cases heard. Children from

the contiguous countries of Mexico and Canada must be

screened to determine whether they have an asylum claim,

whether they are at risk of or a victim of trafficking, and

whether they have the capacity to choose to return to their

country of origin. If not, they must see an immigration

judge.

T Nonimmigrant Visa (T visa) is a visa for individuals

arriving or already inside the United States who are or have

been victims of human trafficking and who are willing

to assist in an investigation or prosecution of human

trafficking.

U Nonimmigrant Visa (U visa) is a visa for victims of

certain crimes—ones that either occurred in the United

States or violated U.S. laws—who are willing to help in an

investigation or prosecution of that crime. Some of the

qualifying crimes include domestic violence, kidnapping,

and rape.

Violence Against Women Act (VAWA) allows a battered

spouse, child, or parent to apply for a visa petition

under the INA if the abuser was a U.S. citizen or lawful

permanent resident.

Voluntary Return/Administrative Voluntary Departure

is a tool that allows non-citizens to “accept” repatriation

to their country of origin without a formal removal order;

as such, it does not incur all of the penalties associated

with a formal removal order. However, it does require the

individual to waive a hearing and the opportunity to make

claims for relief, to depart from the United States, and to

wait outside the United States, in some cases for many

years, until he or she can apply to return.





Law Center; and Shoba Sivaprasad Wadhia, Pennsylvania

State Dickinson School of Law. We would also like to thank

Grace Meng, Senior Researcher, Human Rights Watch, for

her advice and inspiration in choosing this project.

The ACLU is particularly grateful to the Mexican human

rights attorneys and Mexican migrant shelters and their

staff who provided assistance and space for the interviews,

including Esmeralda Flores, Gilberto Martínez, Blanca

Cynthia Navarrete García, Perla del Ángel, Rocío Meléndez

Domínguez, Marla Conrad, Maria Gallegos, and Adalberto

Ramos.

Over one hundred individuals who had been deported or

were facing deportation shared their stories with the ACLU,

including intimate details about violence they had faced

and their fears for their families on both sides of the border.

The ACLU thanks all the individuals and their families

who were interviewed for this report for their courage and

generosity in sharing their stories.

ACKNOWLEDGEMENTS

This report was researched and written by Sarah Mehta,

Human Rights Researcher at the ACLU. Within the

ACLU, this report was reviewed in full by Jennifer Turner,

Senior Researcher, Human Rights Program; Jennifer Chang

Newell, Senior Staff Attorney, Immigrants’ Rights Project;

Chris Rickerd, Policy Counsel; and Jamil Dakwar, Director,

Human Rights Program. Portions of this report were also

reviewed by Jameel Jaffer, Director, Center for Democracy;

Judy Rabinovitz, Deputy Director, Immigrants’ Rights

Project; Carl Takei, National Prison Project; and Ahilan

Arulanantham, Deputy Legal Director, ACLU of Southern

California, and Senior Staff Attorney, Immigrants’ Rights

Project. Gabriela Rivera, Staff Attorney, ACLU of San Diego

& Imperial Counties, not only assisted in preparing the

Freedom of Information Act requests (some of which she

is currently litigating), but also helped identify individuals

interviewed for this report. Human Rights Program

assistant Astrid Reyes provided invaluable interpretation

services as well as research and administrative assistance,

and Terry Ding, paralegal for the Immigrants’ Rights

Project, assisted in locating and procuring public legal cases

and pleadings. Astrid Dominguez, ACLU of Texas, also

provided crucial interpretative assistance.

The ACLU is grateful to the following individuals for their

assistance in interpreting during interviews for this report:

Alejandra Ávila, Vicki Gaubeca, Araceli Gonzalez, Yanira

Lemus, César López, Camilo Mejia, Michelle Stavros, and

Rosa Valderrama.

The ACLU would like to thank the following individuals

for their incalculable assistance in both reviewing draft

sections and providing expertise throughout the project:

Lisa Brodyaga; Ira Kurzban; Jennifer Koh Lee, Western State

College of Law; Erika Pinheiro and all of her colleagues

at the Esperanza Immigrant Rights Project, Catholic

Charities of Los Angeles; Trina Realmuto, National

Immigration Project of the National Lawyers Guild;

Marc R. Rosenbaum, Migration Policy Institute; Aryah

Somers; Jessica Shulruff, Americans for Immigrant Justice;

Jayashri Srikantiah, Stanford Law School; Stephanie Taylor,

American Gateways; Karen Tumlin, National Immigration





8. Department of Justice, “Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures; Final Rule,” 62 Fed. Reg.10313, March 6, 1997.

9. a form that includes a paragraph explaining asylum to individuals processed for expedited removal. 8 C.F.R. 235.3(b)(2)(i).

10. United States Commission on International Religious Freedom, REPORT ON ASYLUM SEEKERS IN EXPEDITED REMOVAL, Feb. 8, 2005, available at http://www.uscirf.gov/index.php?option=com_content&task=view&id=1892&Itemid=1.

11. spoke directly and who had a (prior or current) removal order when

nor does it include individuals who were not deported by CBP at the border (for example, individuals arrested by ICE in the interior of the United States, including individuals who were soon after serving a criminal sentence or being arrested by local police anywhere in the United States).

12. As explained in the Methodology section of this report, full names are not used for individuals interviewed for this report in order to respect the sensitivity of the information communicated and because several of these individuals have on-going immigration cases. Full names are provided for individuals whose stories are already in the public domain.

13. See generally Rethinking Removability, 65 FLA. L. REV. 1803 (2013).

14. A U visa is a nonimmigrant visa given to crime victims who assist law enforcement with the investigation and prosecution of crimes.

15. Customs and Border Protection operates within 100 miles of any international land or sea border, maximizing its interpretation of

available at http://

Rule.pdf.

16. FINDINGS AND RECOMMENDATIONS RELATING TO THE 2012-2013 MISSIONS TO MONITOR THE PROTECTION SCREENINGS OF MEXICAN UNACCOMPANIED CHILDREN ALONG THE U.S.-MEXICO BORDER (“UNHCR CONFIDENTIAL REPORT”),

17. Sonora, Mexico.

18. Memorandum for the Heads of Executive Departments and Agencies,

19. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, CHILDREN ON THE RUN: UNACCOMPANIED CHILDREN LEAVING CENTRAL AMERICA

1.

2. Statistics, Annual Report, , September 2014, available at publications/ois_enforcement_ar_2013.pdf. The remaining 75,142 removal orders could include orders issued by immigration judges such as voluntary departure (where the judge may not actually see the individual in person) as well as other summary removal

the number of these removals through a Freedom of Information Act request but has not received a response from the Department of Homeland Security, which conducts these removals.

3.

4. Throughout this report, the terms “removal” and “deportation” are used interchangeably to refer to the compulsory repatriation of an individual with an order requiring their departure issued by the U.S. government. As discussed later in this report, “summary removal procedures” may also include administrative voluntary departure or “voluntary return” where an individual agrees to leave the United States without a formal order of removal.

5. Throughout this report, the phrase “summary removal procedures” will be used to describe the various administrative removal processes where a person can be removed or returned from the United States without seeing a judge. These processes include expedited removal, reinstatement, administrative removal, voluntary return, and stipulated orders of removal. Their differences, including the claims that can be made and their consequences, are explained at length in the legal background section of this report.

6. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter “IIRIRA”), enacted as Division C of

104–208, 110 Stat. 3008 (Sept. 30, 1996).

7. TRACIMMIGRATION, ,

(“Immigration and Customs Enforcement (ICE) has had diminishing success in convincing Immigration Judges to issue removal orders. Such orders are now granted only about 50 percent of the time, the lowest level since systematic tracking began more than 20 years ago...During FY 2011 that rate had fallen to 70.2 percent; by FY

it was down to only 50.3 percent.”).

ENDNOTES





Texas were unrepresented in 2009. Texas Appleseed,

System, March 2010, p. 13, available at http://www.texasappleseed.net/index.php?option=com_docman&task=doc_download&gid=313.

29. Julie Myers Wood & Wendy Young, , THE WALL STREET JOURNAL, Sept. 22,

2013, available at http://online.wsj.com/news/articles/SB10001424

young as 5 facing an immigration judge with no representation.”). See generally , No. 2:14-CV-01026 (W.D.Wash. July 9, 2014), available at

30. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter “IIRIRA”), enacted as Division C of

104–208, 110 Stat. 3008 (Sept. 30, 1996). The various processes created in 1996 include expedited removal, administrative voluntary departure, reinstatement, administrative removal, and stipulated orders of removal. Each is discussed at length in subsequent sections of this report.

31. are currently being litigated requesting information as to the number of people considered a recent illegal entrant by virtue of where they were apprehended, and within that number, how many people were

information has not been released to date.

32. Marc R. Rosenblum and Doris Meissner, MIGRATION POLICY INSTITUTE, THE DEPORTATION DILEMMA: RECONCILING TOUGH AND HUMANE ENFORCEMENT, (April 2014) at 21 (“MPI Report”) available at http://www.migrationpolicy.org/research/deportation-dilemma-reconciling-tough-humane-enforcement.

33. at 4.

34. . at 25.

35. 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 6276.

36. Immigration judges are administrative judges within the

Justice. While they are “administrative” actors, they nonetheless are

is part of the agency (DHS) that is responsible for apprehending, detaining, prosecuting, and removing non-citizens.

37. , 25 I&N Dec. 580, 588 (BIA 2011).

38. Memorandum from John Morton, Director, ICE, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” June 17, 2011.

AND MEXICO AND THE NEED FOR INTERNATIONAL PROTECTION (May 2014), 39 (hereinafter “UNHCR Report”), available at http://www.

20. U.S. Senate, Committee on the Judiciary, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005).

21. This strategy is known as the “Consequence Delivery System” and includes several programs such as the use of formal summary removal orders, criminal prosecution for illegal entry and reentry, and remote repatriation. See generally Marc R. Rosenblum, Congressional Research Service,

y, Jan. 6, 2012, available at http://fpc.state.gov/documents/organization/180681.pdf/.

22. To date, DHS has failed to provide complete data regarding recidivism rates, so evaluating the “success” of these Consequence

possible.

23. U.S. Congress, Committee on the Judiciary, U.S. Senate, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005); Vice President Joseph Biden, Remarks to the Press and Question and Answer at the Residence of the U.S. Ambassador, Guatemala City, Guatemala (June 20, 2014) (“none of these children or women bringing children will be eligible under the existing law in the United States.”), available atremarks-press-qa-vice-president-joe-biden-guatemala; Interview with Secretary of Homeland Security Jeh Johnson, NBC NEWS, MEET THE PRESS, July 6, 2014 (video) (“The goal of the Administration is to stem the tide and send the message unequivocally that if you come

to Panama (July 1, 2014) (stating incorrectly that people who are not available

at http://m.state.gov.md228646.htm.

24. , 189 U.S. 86, 100-01 (1903).

25. , 259 U.S. 276, 284-85 (1922). See also , 130 S.Ct. 1473, 1481 (2010) (“deportation is a

particularly severe penalty”).

26. , 385 U.S. 276, 285 (1966).

27. One federal appellate court compared the immigration code

second only to the federal tax code in its complexity. , 548 F.2d 37, 38 (2nd Cir. 1977); , 847 F.2d 1307, 1312 (9th Cir. 1987).

28. VERA INSTITUTE FOR JUSTICE, IMPROVING EFFICIENCY AND PROMOTING JUSTICE IN THE IMMIGRATION SYSTEM: LESSONS FROM THE LEGAL ORIENTATION PROGRAM, May 2008, 1, available at http://www.

organization, found that 86 percent of immigration detainees in





nytimes.com/2014/08/23/us/us-faces-suit-over-tactics-at-immigrant-detention-center.html;

, Study Group on Immigrant Representation 4 (Dec. 2011) represented non-detained non-citizens received favorable outcomes, as opposed to 13 percent of unrepresented non-detained non-citizens).

45. U.S. Congress, Committee on the Judiciary, U.S. Senate, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005).

46. MPI report at 18.

47. through FOIA, on how agents determine whether to allow someone to withdraw a request for admission, to be referred to regular removal proceedings, or to place someone in a summary removal proceeding such as expedited removal.

48. Department of Homeland Security, FY 2013 ICE Removal Statistics, available at http://www.ice.gov/removal-statistics/.

49. Under the INA, a person who is “inadmissible” is ineligible for a visa or for admission to the United States based on health grounds, their criminal record, or, under some circumstances, a prior removal order.

50. 8 U.S.C. § 1225(b)(1)(A)(i).

51. 8 C.F.R. § 235.3 (b)(2)(ii).

52. INA § 235(b); 8 C.F.R. § 235.3(b)(1)(ii); Department of Homeland Security, “Designating Aliens for Expedited Removal,” 69 Fed. Reg. 48877-01, 48879 (Aug. 11, 2004) (“[T]his notice applies only to aliens encountered within 14 days of entry without inspection and within 100 air miles of any U.S. international land border.”), available at http://www.gpo.gov/fdsys/granule/FR-2004-08-11/04-18469.

53. INA § 212(a)(9)(A)(i), 8 U.S.C. § 1182(a)(9)(A)(i).

54. INA § 212(a)(6)(C).

55. See INA § 235.3(b)(1)(A)(i) and (ii); 8 C.F.R. §§ 235.3(b)(4) and (b)(5). Unaccompanied minors may also not be issued an expedited removal order; instead, unaccompanied minors from Mexico and Canada may be brought to an immigration judge or, under certain circumstances, permitted to take voluntary return. All other unaccompanied minors are given a full immigration hearing.

DHS issues an expedited removal order. See 8 C.F.R. §§ 235.3(b)(5).

56. 8 C.F.R. § 235.3(b)(5)(i).

57. 8 U.S.C. § 1225(b)(1)(A)(ii).

58. , 608 F.3d 325 (7th Cir. 2010); , 539 F.3d 1133 (9th Cir. 2008); , 275

F.3d 443 (5th Cir. 2001).

39. . Prosecutorial discretion, which can be exercised in the charging process, during the litigation, and/or to settle a case, is a tool that applies to ICE. It does not appear that there is any such guidance for CBP.

40. 8 U.S.C. § 1229a(b)(4)(A)-(B).

41. 8 U.S.C. § 1229a(b)(4)(C).

42. See Daniel Costa, Overloaded Immigration Courts, ECON. POL. INST., July 24, 2014, available at http://www.epi.org/publication/immigration-court-caseload-skyrocketing/; Ana Campoy,

2014, available at http://online.wsj.com/news/articles/SB40001424052702304070304580077491244309462. See also Eli Saslow, In a

, WASH. POST, Feb. 2, 2014, available at http://www.washingtonpost.com/national/in-a-crowded-immigration-court-seven-minutes-to-decide-a-familys-future/2014/02/02/518c3e3e-

Setting, CNN (June 26, 2014), http://www.cnn.com/2014/06/26/opinion/immigration-judge-broken-system/.

43. Kirk Semple, , N.Y. TIMES, Aug. 4,

2014, available at http://www.nytimes.com/2014/08/05/nyregion/advocates-scramble-as-new-york-accelerates-child-deportation-cases.html; Julia Preston,

, N.Y. Times, Aug. 25, 2012, at A1, available at http://www.nytimes.com/2012/08/26/us/more-young-illegal-immigrants-face-deportation.html?pagewanted=all (describing six-year-old child in removal proceedings without counsel); see also Julie Myers Wood & Wendy Young, , The Wall Street Journal, Sept. 22, 2013, available at http://online.wsj.com/news/articles/SB1000142412788732449260457908340034

judge with no representation.”). See generally, HUMAN RIGHTS , DEPORTATION

BY DEFAULT: MENTAL DISABILITY, UNFAIR HEARINGS, AND INDEFINITE DETENTION IN THE US IMMIGRATION SYSTEM (July 2010), available at

immigrants with mental disabilities on the right to counsel, which resulted in a permanent injunction in California, Arizona, and Washington State in May 2013.

44. Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip G. Schrag,

, 60 STAN. L. REV

Trevizo, Ariz. Daily Star, Aug. 23, 2014, available at http://tucson.com/news/local/border/who-gets-detained-released-sometimes-just-luck/article_a42169bf-6399-51be-ae1d-3c0feed6ecf3.html. Julia Preston,

, N.Y. Times, Aug. 22, 2014, available at http://www.





68. After the dissolution of the INS in 2003, the newly created Department of Homeland Security (DHS) took over responsibility for numerous immigration enforcement and removal programs, including expedited removal.

69. Department of Justice, “Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures; Final Rule,” 62 Fed. Reg. 10312-01 (March 6, 1997).

70. “DHS Announces Unprecedented Expansion of Expedited Removal to the Interior: Practice Advisory,” (Aug. 13, 2004) at 2, available at http://shusterman.com/pdf/ailf81304.pdf.

71. -, 25 I&N Dec. 520 (BIA 2011)

that the DHS has discretion to put aliens in section 240 removal proceedings even though they may also be subject to expedited removal under section 235(b)(1)(A)(i) of the Act. Section 235(b)(2)(A) of the Act provides that ‘in the case of an alien who is an

determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a

see also, Shoba S. Wadia, 5 COLUM. J. RACE L.

1 (2014).

72. Wadia. at 5.

73. Mary Kenney, , at 5.

74. Eric Schmitt, , N. Y. TIMES. May 3, 1996.

75. “Domestic Violence Cases in the Asylum Process,” Congressional Record Volume 146, Number 111 (Tuesday, September 19, 2000) available at http://www.gpo.gov/fdsys/pkg/CREC-2000-09-19/html/CREC-2000-09-19-pt1-PgS8752.htm.

76. .

77. 8 C.F.R. § 235.3(b)(4).

78. 8 C.F.R. § 235.3(b)(4)(i)(C). In February 2014, citing

The memorandum states that a claim should be referred to an asylum

, (Feb. 28, 2014), available at http://www.aila.org/content/default.aspx?docid=48256. Advocates have raised concern that this standard, which is higher than the standard an asylum seeker must meet in court, unjustly diverts asylum seekers into expedited removal without the chance to seek protection.

Plan leaves one with the clearly improper message that asylum

59. In testimony in 2005, shortly after the expansion of expedited

Border Patrol, explained to the Senate Committee on the Judiciary that expedited removal sped up the process: “That is why we are

with expedited removal. . . . Under ER [] basically, the agent on the ground will make that determination as to whether that person has any claim to be in the United States or right to be in the United States. . . . .[O]nce that determination is made, these people are rapidly removed out of the country without an immigration judge coming into play.” U.S. Congress, Committee on the Judiciary, U.S. Senate, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005).

60. 67 Fed. Reg. 68924-01 (Nov. 13, 2002) (“The Service believes that the expedited removal provisions, and exercising its authority to detain this class of aliens under 8 C.F.R. part 235, will assist in deterring surges in illegal migration by sea, including potential mass migration, and preventing loss of life.”).

61. , THE HUFF. POST, Oct. 28, 2013, available at: http://

misplays_b_4158840.html.

62. 69 Fed. Reg. 48877-01 (Aug. 11, 2004).

63. .

64. 8 U.S.C. § 1225(b)(1)(A)(ii).

65. 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 208.30(g).

66. 8 C.F.R. § 1208.30(g)(2)(iv)(A) (“If the immigration judge

does not have a credible fear of persecution or torture, the case shall be returned to the Service for removal of the alien. The immigration

67. response to the large number of migrants from Cuba and Haiti who

“summary exclusion,” which would eliminate the ability of arriving non-citizens to get a hearing and appeal a denial of relief even if they did not have proper immigration documentation. While summary exclusion was not adopted in the 1980s, it reemerged in 1995 as “expedited removal of arriving aliens” and became law as part of IIRIRA in 1996. See generally Philip G. Schrag, A WELL-FOUNDED FEAR: THE CONGRESSIONAL BATTLE TO SAVE POLITICAL ASYLUM IN AMERICA, (Routledge 2000); CONGRESSIONAL RESEARCH SERVICE, IMMIGRATION POLICY ON EXPEDITED REMOVAL OF ALIENS (Sept. 30, 2005), at 3, available at: http://trac.syr.edu/immigration/library/P13.pdf.; UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, REPORT ON ASYLUM SEEKERS IN EXPEDITED REMOVAL, (Feb. 8, 2005) available at: http://www.uscirf.gov/index.php?option=com_content&task=view&id=1892&Itemid=1.





Haitian applicants for adjustment under the Haitian Refugee

HRIFA § 902(a)(2); 8 C.F.R. § 241.8(d); and some individuals applying for adjustment of status under INA § 245A (legalization) who are class members of certain lawsuits.

89. 8 C.F.R. § 241.8(a).

90. See generally, Trina Realmuto, National Immigration Project

American Immigration Center, (“Reinstatement Practice Advisory”) 9-10, (Aug.

2013), available at http://www.nationalimmigrationproject.org/

91. 8 C.F.R. § 241.8(b).

92. INA § 242(b)(1). Filing a petition for review, however, does not automatically stay the removal.

93. INA § 242(b)(4)(A)&(B).

94. One study showed that ICE conducted more than 8,300 reinstatements in the Chicago area between FY 2007 and FY 2011. María Inés Zamudio, , THE CHICAGO REPORTER, May 1, 2013, available at http://www.chicagoreporter.com/speedy-removal#.VAi6VBatbTo.

95. INA § 212(a)(9)(A).

96. , 23 I&N Dec. 866 (BIA 2006).

97. 8 U.S.C. § 1326.

98. , SYRACUSE UNIVERSITY: TRANSACTIONAL RECORDS CLEARINGHOUSE (TRACfed), http://tracfed.syr.edu/ (membership required);

SYRACUSE UNIVERSITY: TRANSACTIONAL RECORDS CLEARINGHOUSE (TRACfed), http://tracfed.syr.edu/ (membership required).

99. INA § 241(a)(5).

100. INA § 241(b)(3)(A). See generally 64 Fed. Reg. 8478-01 (Feb. 19, 1999); Department of Homeland Security, U.S. Citizenship and Immigration Services, “Reinstatement of a Prior Order,” at 1 (p.

Toolkit,” August 2014, available at https://law.psu.edu/sites/default/

101. INA § 235(b)(1)(B)(v).

102. 8 C.F.R. § 208.30(e)(3).

103. 8 C.F.R. §§ 208.31(c); see generally, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “Questions & Answers: Reasonable Fear Screenings,” available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-answers-reasonable-fear-screenings.

by the statutory framework and U.S. asylum law.” Memorandum,

Torture Determinations,” April 21, 2014, available at http://static.squarespace.com/static/50b1609de4b054abacd5ab6c/t/53558353e4

79. Refugee Protection Act of 2001, S. 1311, 107th Cong. (2001), available at

see generally, Philip G. Schrag,

(Routledge 2000).

80. , REPORT ON ASYLUM SEEKERS IN EXPEDITED

REMOVAL, (Feb. 8, 2005) available at: http://www.uscirf.gov/index.php?option=com_content&task=view&id=1892&Itemid=1.

81. Data obtained through a FOIA by The New York Times

processed under ER have no criminal history, and less than 1 percent had been convicted of a violent crime. Over 60 percent of ERs with criminal history had illegal entry/reentry as their most serious offense.

82.

have any statutory basis. Bizarrely, the statute does not even permit the habeas court to consider whether the underlying legal regime is

Boumediene v. Bush, 110 COLUM. L. REV. 537, 573-574 (2010).

83. , 608 F.3d 325, 329 (7th Cir. 2010).

84. , 635 F.3d 563, 566 (1st Cir. 2011) (“The lack of procedural protections accompanying expedited

8 U.S.C. § 1229a, that is required to effectuate a formal removal.”).

85. INA § 241(a)(5), 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8.

86. Department of Homeland Security, FY 2013 ICE Removal Statistics. This is also the fastest rising category of deportations. In 2005, 43,137 people were deported through reinstatement.

87. , 727 F.3d 873, 878 (9th Cir. 2013) (“[ ] ICE agents, to whom § 1231(a)(5) delegates the decision to reinstate a prior removal order, may exercise their discretion not to pursue streamlined reinstatement procedures.”).

88. Some categories of individuals are statutorily exempt from reinstatement. These groups include Nicaraguans and Cuban applicants for adjustment under § 202 of the Nicaraguan Adjustment

114 Stat. 2763 (Dec. 21, 2000) amending NACARA § 202(a)(2); 8 C.F.R. § 241.8(d); Salvadoran, Guatemalan, and Eastern





114. Individuals facing reinstatement of removal are also

Against Women Act (VAWA), INA § 212(a)(9)(C)(iii), or through certain types of visas, such as a U visa (for victims of crime), INA § 101(a)(15)(U), INA § 212(d)(14) (waiver for crime

thorough list of ways a person might be eligible to adjust status, including through consular processing, see Reinstatement Practice Advisory, note 90.

115. Department of Homeland Security, FY 2013 ICE Removal Statistics, available at http://www.ice.gov/removal-statistics/.

116. 8 U.S.C. § 1229c(a)(1).

117. 8 C.F.R. § 240.25 (c).

118. , 439 F.3d 614, 620 (9th Cir. 2006); , 541 F.Supp. 351, 374 n.27 (C.D. Cal. 1982).

119. 8 U.S.C. § 1229c(a)(2)(A).

120. 8 C.F.R. § 240.25(a), (c).

121. , No. 2:13-CV-03972-JAK, ¶ 5(C.D. Cal. June 4, 2013).

122. 8 U.S.C. § 1182(a)(9)(B)(i)(II).

123. 8 U.S.C. § 1182(a)(9)(B)(i)(I).

124. 8 U.S.C. § 1182(a)(9)(B)(v).

125. .

126. 8 U.S.C. § 1182(a)(9)(C)(i).

127. 8 C.F.R. § 240.25(c).

128. , No. 2:13-CV-03972-JAK, ¶ 33-36 (C.D. Cal. June 4, 2013).

129. . ¶ 44.

130. .

131.

, (Aug. 27, 2014), available at https://www.aclusandiego.org/aclu-achieves-class-action-lawsuit-settlement-ends-deceitful-immigration-practices/; Gabriela Rivera

“Victory! Immigration Authorities Must Stop Coercing Immigrants Into Signing Away Their Rights,” Aug. 27, 2014, available at https://www.aclu.org/blog/immigrants-rights/victory-immigration-authorities-must-stop-coercing-immigrants-signing-away.

132. Interview with Veronica V., by telephone, April 23, 2014 (on

104. USCIS Asylum Division, at 8 (Aug.

6, 2008), available at

Determinations-31aug10.pdf.

105. at 11.

106. , 480 U.S. 421, 440 (1987).

107. See Center for Gender & Refugee Studies, University of PRO SE MANUAL: ASYLUM,

WITHHOLDING OF REMOVAL, AND CONVENTION AGAINST TORTURE PROTECTION FOR SURVIVORS OF DOMESTIC VIOLENCE, at 12, available at

108.

waiting in detention for a reasonable fear interview.

109. 509 F.3d 677 (5th Cir. 2007); ., 487 F.3d 855, 862 (11th Cir. 2007);

396 F.3d 999, 1002 (8th Cir. 2005); , 394 F.3d 780, 782 n.1 (9th Cir. 2005); ., 341 F.3d 533, 545 (6th Cir. 2003); ., 436 F.3d 89, 100–01 (2d Cir. 2006) (noting that denial of asylum in favor of withholding of removal would have the “practical effect” of separating the individual from his wife and children).

110. 8 C.F.R. §§ 208.31; 241.8(e).

111. refer case to immigration judge); 1208.31(e) (same); 241.8(e) (same); 1241.8(e) (same); 8 C.F.R. §§ 208.2(c)(2) (immigration judge jurisdiction in referred cases); 1208.2(c)(2) (same). If the immigration judge decides the individual does not have a reasonable fear of persecution and/or is not eligible for relief under CAT, the non-citizen may appeal that determination to the Board of Immigration Appeals (BIA). 8 C.F.R. § 1208.31(e). If an asylum

an immigration judge. 8 C.F.R. §§ 208.31(f), (g); 1208.31(f),(g).

not have the right to appeal to the BIA. 8 C.F.R. §§ 208.31(g)(1); 1208.31(g)(1).

112. , 531 F.3d 141, 150 (2d Cir. 2008).

113. Interview with Narcisco G., Reynosa, Mexico, April 17,

voluntary departure (“voluntary return”) but fail to depart the United States can be subject to civil penalties. 8 C.F.R. § 1240.26(j).Moreover, their voluntary return is converted into a formal removal order when the individual fails to depart the United States within the allotted time. 8 C.F.R. § 1240.26(a).





subsequently created the Department of Homeland Security and vested it with power to enforce immigration statutes.

145. INA § 238(b) (“The Attorney General may . . . determine

and issue an order of removal pursuant to the procedures set forth in this subsection or section 240.”) (emphasis added). See also

raises a genuine issue of material fact regarding the preliminary

notice to appear to initiate removal proceedings under section 240 of the Act.”) and 8 C.F.R. § 238.1(d)(2)(iii) (“If the deciding Service

expedited proceedings under section 238 of the Act and shall, where appropriate, cause to be issued a notice to appear for the purpose of initiating removal proceedings before an immigration judge under section 240 of the Act.”).

146. Federal courts have previously rejected challenges to 238b brought under the Equal Protection Clause of the U.S. Constitution, asserting that the statute has no rational basis for allowing some individuals to be charged and processed through a summary removal procedure with limited safeguards while referring others to full immigration court hearings.

, 415 F.3d 375 (5th Cir. 2005) (holding that the Attorney

basis); , 454 F.3d 813, 818 (8th Cir. 2006) (same); , 512 F.3d 1104, 1107 (9th Cir. 2008) (same); , 519 F.3d 546, 552 (6th Cir. 2008) (same). However, advocates suggest that a challenge to the decision to place a person in the summary 238b proceedings instead of through immigration court raises fairness issues under for relief when convicted of an aggravated felony “hangs on the

, 132 S. Ct. 476, 486 (2011). See Practice Advisory, Implications of

Individuals Challenging Arbitrary Agency Policies (Dec. 2011) at 11 available at http://nationalimmigrationproject.org/legalresources/

such a chance system, in which one longtime immigrant may have an opportunity to seek adjustment while another will not, based

or follow the procedures under INA § 238(b).”); Jeffrey D. Stein, Judulang

(forthcoming) (July 11, 2012) available at http://www.law.yale.edu/documents/pdf/News_&_Events/Stein_Delineating_Discretion.pdf.

147.

8 C.F.R. §§ 238.1(f)(3); 208.31. The rules that apply to reasonable fear determinations for individuals with a 238b administrative removal order are the same that apply to individuals with reinstated orders of removal.

133.

, (Aug. 27, 2014), available at https://www.aclusandiego.org/aclu-achieves-class-action-lawsuit-settlement-ends-deceitful-immigration-practices/; Gabriela Rivera

“Victory! Immigration Authorities Must Stop Coercing Immigrants Into Signing Away Their Rights,” Aug. 27, 2014, available at https://www.aclu.org/blog/immigrants-rights/victory-immigration-authorities-must-stop-coercing-immigrants-signing-away.

134. Administrative removal applies to undocumented individuals

individuals with permanent resident status on a basis. 8 U.S.C. § 1228(b)(2)(B).

135. “Aggravated felonies” include crimes that, under state criminal laws, are not necessarily felonies and may not even include a term of imprisonment. The Immigration and Nationality Act (INA)

ranging from tax evasion to rape, listed at 8 U.S.C. § 1101(a)(43), and what is considered an aggravated felony varies in accordance with state law. Moreover, federal courts can and do review

and determine that the crime is not an aggravated felony under immigration law. These can be complicated legal determinations for lawyers and judges.

136. A “crime involving moral turpitude” (CIMT) is a crime that, for immigration purposes, is considered to be a depraved or immoral act, or even a “reprehensible act” carried out with recklessness. While the INA does not list all the crimes that can be considered CIMTs, some crimes that may be CIMTs include crimes involving fraud or bodily harm to others. Persons with a conviction for a CIMT can be deportable (under 8 USC § 1227(a)(2)(A)(i), (ii)) or inadmissible (under 8 USC § 1182(a)(2)(A), with some exceptions for “youthful offenders” or “petty offenses”).

137. INA § 238(b), 8 U.S.C. § 1228(b).

138. 8 U.S.C. § 1228(b)(1).

139. 8 U.S.C. § 1228(b)(3). The actual period for appeal is governed by 8 U.S.C. § 1252(b)(1) and is 30 days, although under federal regulations the automatic stay on removal is only for 14 days. Based on the 238b form, this deadline may not be at all apparent to the individual facing removal and trying to collect supporting materials for appeal.

140. .

141. 8 U.S.C. § 1228(b)(4)(A)-(C). DHS is required to provide the individual with “a list of available free legal services programs” that can provide assistance. 8 C.F.R. § 238.1(b)(2)(iv).

142. 8 U.S.C. § 1228(b)(4)(E),(F).

143. 8 C.F.R. § 238.1(e).

144. Although the statute refers to the “Attorney General,” the





164. DEPORTATION WITHOUT DUE PROCESS, at 9.

165.

Assistance Foundation, “The majority of the people who signed

removal order.” María Inés Zamudio, , THE CHICAGO REPORTER, May 1, 2013, available at http://www.chicagoreporter.com/speedy-removal#.U5noey_D8iA.

166. DEPORTATION WITHOUT DUE PROCESS, at 12-13.

167. . at 2. There are no regulations on what information an ICE

a stipulated order of removal, leading to further inconsistencies


169. . at 5-6.

170. at 9; see also


172. Koh, , at 479; American Immigration Council, Immigration Policy Center,

, May 2014.

173. MPI report at 26.

174. See also, Daniel Gonzales, , THE ARIZONA REPUBLIC, Nov. 6, 2011,

available at http://www.azcentral.com/arizonarepublic/news/articles/2011/11/06/20111106immigration-arizona-deportation-program.html.

175. , 623 F.3d 672, 683 (9th Cir. 2010) (“Without any independent inquiry of the petitioner, and depending solely on information provided by DHS, the IJ concluded that Ramos

process rights. As we have noted, shortcuts frequently turn out to be mistakes.”) (internal citations omitted).

176. María Inés Zamudio, , The Chicago Reporter (May 1, 2013), available at http://www.chicagoreporter.com/speedy-removal#.U5noey_D8iA.

177. , , 757 F.3d 885 (9th Cir. 2014)

,

denied her any opportunity to stay in the United States and urged her to take a stipulated order; 7th Circuit held that although the IJ did not

148. A U visa will cancel any prior order of removal. 8 C.F.R. § 214.14(c)(5)(i) (“For a petitioner who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as of the date

149. 8 C.F.R. §§ 238.1(b)(2)(i), 1238.1(b)(2)(i). 8 C.F.R. § 208.31.

150. See 8 C.F.R. §§ 238.1(c)(2)(i), 1238.1(c)(2)(i); see also INA § 101(a)(43); 8 U.S.C. §1101(a)(43).

151. 8 U.S.C. § 1228(c)(3)(A)(i).

152. 8 U.S.C. § 1229a(b)(4)(C) and 8 C.F.R. § 1240.9 8 C.F.R. § 1238.1(h).

153. , 559 U.S. 356, 378 (2010) (J. Alito, concurring).

154. Interview with Ricardo S., by telephone, March 10, 2014

155. Miguel Perez, , THE RECORD, July 10, 2002, available at

http://lists.topica.com/lists/ImmigrantRightsAFSCNYMRO/read/message.html?sort=t&mid=803694050; Daisy Cutter,

, THE DAILY KOS, Aug. 16, 2008, available at http://www.dailykos.com/story/2008/08/16/569034/-US-citizens-detained-and-or-deported-by-immigration-enforcement#.

156. INA § 240(d); 8 U.S.C. §1229a(d).

157. Inspection and Expedited Removal of Aliens, 62 Fed.Reg. 10312-01, 10322 (Mar. 6, 1997).

158. 8 C.F.R. § 1003.25(b).

159. 8 C.F.R. § 1003.25(b)(1)-(8).

160. A stipulated order cannot be appealed; however, a non-citizen

grant these petitions.

161. 8 C.F.R. § 1003.25(b).

162. U.S. Immigration and Customs Enforcement, (April 2011), available

atprosecutors.pdf; see also, U.S. Department of Justice, Executive

, (Sept. 15, 2010), available at http://www.justice.gov/eoir/efoia/ocij/oppm10/10-01.pdf (“These orders

the Department of Homeland Security (DHS).”).

163. Tumlin, DEPORTATION WITHOUT DUE PROCESS (September 2011) at 12, available at http://www.stanford.edu/group/irc/Deportation_Without_Due_Process_2011.pdf.





that asylum applicants must now “demonstrate a substantial and realistic possibility of succeeding” in their cases to be permitted an opportunity to apply for asylum before an immigration judge.

Determinations, February 28, 2014, available at http://www.aila.org/content/default.aspx?docid=48256. Advocates raised concern both that this standard is much higher than what an asylum seeker must actually show to qualify for asylum under the law, and also that the new instructions were issued in a surreptitious manner. See,

available at http://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/05/05/credible-fear-lesson-plan-39-undermines-the-asylum-process-39-

Committee Chair, “is Enough!” (April 25, 2014), available at http://ailaleadershipblog.org/2014/04/25/the-revised-credible-fear-lesson-plan-enough-is-enough/.

188. Interview with Kaveena Singh, Berkeley, California,

189. UNHCR, CONFIDENTIAL REPORT, FINDINGS AND RECOMMENDATIONS RELATING TO THE 2012-2013 MISSIONS TO MONITOR THE PROTECTION SCREENINGS OF MEXICAN UNACCOMPANIED CHILDREN ALONG THE U.S.-MEXICO BORDER (“UNHCR CONFIDENTIAL REPORT”),

190. Interview with Manaf S., Oakland, California, March 3, 2014

191.

192. .

193. Interview with Ana N. R., T. Don Hutto Residential Center,

in detention with an expedited removal order at the time of this

credible.

194.

195.

196.

197. AMERICANS FOR IMMIGRANT JUSTICE, THE “HIELERAS”: A REPORT ON HUMAN & CIVIL RIGHTS ABUSES COMMITTED BY U.S. CUSTOMS AND BORDER PROTECTION AGENCY (2013), available at http://www.aijustice.org/the_hieleras_a_report_on_human_civil_rights_abuses_committed_by_u_s_customs_and_border_protection_agency; see alsoArizona, In the Shadow of the Wall: Family Separation, Immigration

cannot be reopened).

178. U.S. Congress, Senate, Subcommittee on Immigration, Committee on the Judiciary, “The Detention and Treatment of Haitian Asylum seekers,” Statement of Senator Sam Brownback (Oct. 2, 2002), available at http://www.gpo.gov/fdsys/pkg/CHRG-107shrg88613/html/CHRG-107shrg88613.htm.

179. U.S. Congress, House Judiciary Committee, “Asylum

Goodlatte, “I am certainly not calling for reduced asylum protections. On the contrary, asylum should remain an important

2014, available at3ea2-44a0-aa79-b9da1cb175e9/113-66-86648.pdf; , Testimony of Representative Trey Gowdy, “We know that there are survivors of inconceivable and heinous atrocities. We are outraged. We are sympathetic. And more than just sympathy, we are willing to open our country to provide those in need with a refuge, with a sanctuary with safety and dignity.”

180. Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 14.

181. Convention relating to the Status of Refugees, 189 U.N.T.S. 150, April 22, 1954 (“the Refugee Convention”) (implemented in U.S. law through INA Section 208); Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267; 19 U.S.T. 6223; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51

on October 21, 1994.

182. Article 31(1) of the 1951 Refugee Convention states, “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” The Refugee Convention, art. 31(1). These protections apply also to individuals seeking

183. spoke directly and who had a (prior or current) removal order when

on interviews with relatives.

184. 8 U.S.C. § 1225(b)(1)(A)(ii).

185. 8 C.F.R. § 235.3(b)(2).

186. See appendices to this report, available at www.aclu.org; see also 8 C.F.R. § 235.3(b)(2)(i) (requiring that this script be read to the non-citizen).

187. In February 2014, USCIS quietly but deleteriously





to government); , 458 F.3d 1052 (9th Cir. 2006) (holding that reporting not required if applicant can convincingly establish that doing so would have been futile or have subjected him or her to further abuse).

205. Interview with Nydia R., San Francisco, California, February

206. Testimony of Agent Araceli Barba de la Cruz (July 24, 2013) at

207. . at 21:9-15.

208. . at 26:15-25.

209. Interview with Telma M., Broward Transitional Center,

210. , , 26 I&N Dec. 388 (BIA 2014) (recognizing that women who have experienced domestic violence may be considered a “member of a particular social group” for purposes of an asylum claim).

211. Interview with Juan Manuel C., Matamoros, Mexico, April

212. Interview with Bessy M., T. Don Hutto Residential Center,

213. .

214.

215. Interview with Ericka E. F., T. Don Hutto Residential Center,

216. Interview with Braulia A., San Diego, California, March 25,

217. HUMAN RIGHTS FIRST, HOW TO PROTECT REFUGEES AND PREVENT ABUSE AT THE BORDER: BLUEPRINT FOR U.S. GOVERNMENT POLICY, at 12 (June 2014), available at

218. Interview with Wendy, Miami, Florida, April 11, 2014 (on

219. Interview with Rosa F. H., Hutto, Texas, April 22, 2014 (on

220. .

221. Interview with Maria, Marian, and Rosemarie, Miami,

222.

223.

224.

Enforcement and Security Preliminary Data from the Migrant Border Crossing Study (2013), available at: http://las.arizona.edu/sites/

NO MORE DEATHS, A CULTURE OF CRUELTY: ABUSE AND IMPUNITY IN SHORT-TERM U.S. BORDER PATROL CUSTODY (2011), available at http://www.nomoredeaths.org/Abuse-Report-Culture-of-Cruelty/View-category.html; Rachel Bale, Center for Investigative Reporting,

, UNION-TRIBUNE SAN DIEGO, Nov. 20, 2013, available at http://www.utsandiego.com/news/2013/nov/20/cir-border-detainees-freezers/.

198. .

199. Interview with Ponchita, Nogales, Sonora, Mexico, March

with migrants in Mexico said, “When we have talked to migrants

well but when I explain to them what the conditions should be like, about due process, the number goes down to 20-30 percent. … So abuses are not seen [as abuses] all the time because they felt like this is how they are supposed to be treated.” Interview at Casa de Recursos des Migrantes, Agua Prieta, Mexico, February 28, 2014


201.

202. Interview with Felipe R., Reynosa, Mexico, April 17, 2014

203. UNHCR, CONFIDENTIAL REPORT, note 189, at 29.

204. Indeed, the United States recognizes that non-governmental actors or entities whom the government is unwilling or unable to control (including gangs or even families, in cases of domestic violence) can be persecutors for asylum purposes. See USCIS,

of Persecution; Eligibility Based on Past Persecution,” (2009), available at

31aug10.pdf, : , 20 I&N Dec. 142, 147 (BIA 1990) (recognizing persecution from paramilitary death squads); 21 I&N Dec. 337 (BIA 1996) (recognizing persecution from members of opposition political party and clan); , 21 I.&N. Dec. 357 (BIA 1996) (en banc) (recognizing persecution from family members);

, 378 F.3d 940, 943 (9th Cir. 2004) (IJ erred in discounting persecution suffered by applicants at the hands of their family members when the applicants had established that the government was unable or unwilling to control their persecutors);

where an IJ concluded that to qualify for asylum the applicant had to demonstrate government persecution); -, 22 I&N

conditions indicated that it would be unproductive and possibly





232. , No. 4:14-CV-01775-KAW (N.D.

233. 8 C.F.R. § 208.31(b).

234. , No. 4:14-CV-01775-KAW (N.D.

235. Interview with Alejandro, by telephone, May 28, 2014 (on

236. .

237. .

238. 509 F.3d 677 (5th Cir. 2007); ., 487 F.3d 855, 862 (11th Cir. 2007);

396 F.3d 999, 1002 (8th Cir. 2005); , 394 F.3d 780, 782 n.1 (9th Cir. 2005);

., 341 F.3d 533, 545 (6th Cir. 2003); ., 436 F.3d 89, 100–01 (2d Cir. 2006) (noting that denial of asylum in favor of withholding of removal would have the “practical effect” of separating the individual from his wife and children); see generally U.S. DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE OF IMMIGRATION REVIEW, FACTSHEET: ASYLUM AND WITHHOLDING OF REMOVAL RELIEF CONVENTION AGAINST TORTURE PROTECTIONS, (2009), available at http://www.justice.gov/eoir/press/09/AsylumWithholdingCATProtections.pdf.

239. 8 C.F.R. § 208.16(f).

240. Advocates have challenged the limitation (in reinstatement proceedings) on who can receive asylum as inconsistent with the asylum statute, which provides that “any” immigrant, regardless of his or her immigration status, is eligible to apply for asylum. INA § 208(a), 8 U.S.C. § 1158(a). See

, No. 12-72800, (9th Cir. Feb. 4, 2014). The Supreme Court has also indicated that asylum remains available to individuals subject to reinstatement. , 548 U.S. 30, 35 n.4 (2006); ,

acknowledgement of the availability of asylum ).

241.

242. .

243. UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, EXPEDITED REMOVAL STUDY: TWO YEARS LATER (2007), available at: http://www.uscirf.gov/images/stories/pdf/scorecard_

244.

245. .

246. , EXPEDITED REMOVAL STUDY: TWO YEARS

LATER (2007), available at: http://www.uscirf.gov/images/stories/

247. at 4.

225. Interview with Jacqueline Bradley Chacon, by telephone,

226.

227. .

228. being targeted they were deportees from the United States, and it is not uncommon for deportees from the United States to be kidnapped or murdered after their deportation and repatriation. See Elizabeth Kennedy, , NO CHILDHOOD HERE: WHY CENTRAL AMERICAN CHILDREN ARE FLEEING THEIR HOMES, at 5 (July 2014) available at http://www.

CBS NEWS, “For child immigrants, dangers of staying are most grave,” July 17, 2014, available at http://www.cbsnews.com/news/child-immigrants-face-grave-dangers-by-staying-in-central-america/;

2014, available attragedia-de-todo-un-pais; deportado de EUA en Tejutla,” May 24, 2014, available at http://

capital a deportado de EUA,” December 14, 2013, available at

fue deportado de EUA,” March 19, 2013, available at http://www.

Martín,” January 11, 2013, available at

2012, available atjudicial/262121-asesinan-a-dos-hombres-deportados-de-eua.html; El

12, 2013, available at http://www.elsalvador.com/mwedh/nota/nota_completa.asp?idCat=47859&idArt=8399962.

229. Interview with immigration attorney, via email, June 22, 2014

230. Interview with Ana D., Broward Transitional Center, Florida,

231. USCIS Asylum Division, at 8 (Aug.

6, 2008), available at

Determinations-31aug10.pdf. Moreover, while the U.S. Supreme

support a grant of asylum, NS v. Cardozo-Fonseca, 480 U.S. 421, 430 (1987), courts have required immigrants seeking withholding to demonstrate at least a 51 percent likelihood of suffering future persecution. See Immigration Equality,

, (2006), available at https://immigrationequality.org/issues/law-library/lgbth-asylum-manual/withholding-of-removal/





included any individuals who at some point passed through ICE and were considered removals. It is possible this data is an underestimate depending how the data provided was coded by DHS before it was provided to The New York Times.

256. Jude Joffe-Block, , FRONTERAS (March 12, 2014)

available at http://www.fronterasdesk.org/content/9552/facing-risk-rape-migrant-women-prepare-birth-control; Jenny Johnson,

, LATIN AMERICA WORKING GROUP EDUCATION FUND, (October 2013), available at13_Migrant_Report-v5.pdf; JESUIT REFUGEE SERVICE/USA, PERSISTENT INSECURITY: ABUSES AGAINST CENTRAL AMERICANS IN MEXICO (October 2013), available at https://www.jrsusa.org/assets/Publications/File/Persistent_Insecurity.pdf; Sarah Stillman,

, THE NEW YORKER, April 5, 2013, available at http://www.newyorker.com/online/blogs/comment/2013/04/migrants-and-

, FRONTERAS, Aug. 27, 2013, available at http://www.fronterasdesk.org/content/8932/riding-la-bestia-immigration-train; Karl Penhaul, CNN, “Scarred but alive after riding the train of death,” July 30, 2010, available at http://www.cnn.com/2010/

257. U.S. Congress, Committee on the Judiciary, U.S. Senate, “The Southern Border in Crisis: Resources and Strategies to Improve National Security,” S. Hrg. 109-1018 (June 7, 2005); Vice President Joseph Biden, Remarks to the Press and Question and Answer at the Residence of the U.S. Ambassador, Guatemala City, Guatemala (June 20, 2014) (“none of these children or women bringing children will be eligible under the existing law in the United States.”), available atremarks-press-qa-vice-president-joe-biden-guatemala; Interview with Secretary of Homeland Security Jeh Johnson, NBC NEWS, MEET THE PRESS, July 6, 2014 (video) (“The goal of the Administration is to stem the tide and send the message unequivocally that if you come

to Panama (July 1, 2014) (stating incorrectly that people who are not available

at http://m.state.gov.md228646.htm.

258. Interview with Jaime Díez, Brownsville, Texas, April 18,

259. Rethinking Removability, 65 FLA. L. REV. 1803, 1821 (2013).

260. Rachel E. Rosenbloom, , 54 B.C.L. REV. 1965, 1967 (2013).

261. Rethinking Removability, at. 1822, citing

, U.S. CENSUS BUREAU, http://

xhtml?pid=ACS_10_1YR_B05001&prodType=table.

248. at 7-8.

249. HUMAN RIGHTS FIRST, HOW TO PROTECT REFUGEES AND PREVENT ABUSE AT THE BORDER: BLUEPRINT FOR U.S. GOVERNMENT POLICY, (June 2014), available at

AMERICAN IMMIGRATION COUNCIL, MEXICAN AND CENTRAL AMERICAN ASYLUM AND CREDIBLE FEAR CLAIMS: BACKGROUND AND CONTEXT, (May 2014), available at

250. U.S. House of Representatives, ,

113th Cong. (2014) available at http://judiciary.house.gov/_cache/

U.S. House of Representatives, , 113th Cong.

(2013) available atd824-448e-8259-cce4edc03856/113-56-85905.pdf.

251. U.S. House of Representatives,, ;

HUMAN RIGHTS FIRST, HOW TO PROTECT REFUGEES AND PREVENT ABUSE AT THE BORDER .

252. HUMAN RIGHTS FIRST, at Appendix B: Security Checks (detailing the numerous databases to which CBP and ICE have

border, and which become even more extensive should the individual be detained and/or referred into immigration court.).

253. . at 28. In its written testimony for the December 2013 House Judiciary Hearing, “Asylum Abuse: Is It Overwhelming

credible fear interviews “are extensively trained in national security issues, the security and law enforcement background check process, eligibility criteria, country conditions, interview techniques, making proper credibility determinations, and fraud detection.” U.S. Congress, Written Testimony before the House Committee on the Judiciary, “Asylum Abuse: Is It Overwhelming Our Borders?” Combined DHS Written Testimony, Dec. 12, 2013, p. 7, available at

c681c6499251/combined-dhs-testimony.pdf.

254. 8 U.S.C. § 1158(d)(6).

255. See

Chief Michael Fisher for a House Committee on the Judiciary hearing titled “Asylum Abuse: Is it Overwhelming our Borders?” (Dec. 12, 2013), available at http://www.dhs.gov/news/2013/12/12/written-testimony-uscis-ice-and-cbp-house-committee-judiciary-

number—approximately 5 percent—of individuals who were issued expedited removal orders were referred for credible fear interviews. FY 2013 ICE data, procured by The New York Times





281.

282.

recognition of her citizenship from the Department of State only

283. HUMAN RIGHTS WATCH/AMERICAN CIVIL LIBERTIES UNION, DEPORTATION BY DEFAULT: MENTAL DISABILITY, UNFAIR HEARINGS, AND INDEFINITE DETENTION IN THE US IMMIGRATION SYSTEM (July 2010), available at http://www.hrw.org/reports/2010/07/26/deportation-

behalf of immigrants with mental disabilities on the right to counsel, which resulted in a permanent injunction in California, Arizona, and Washington State in May 2013.

284. . at 31.

285. For example, 8 C.F.R. § 1240.10(c) discusses a non-

he or she is deportable if there is no lawyer or other representative appearing with the individual. The IJ must “direct a hearing on

admission that he or she is deportable, or that he or she is a non-citizen (an “alien” under U.S. immigration law).

286. Karen Musalo, EXPEDITED REMOVAL, HUMAN RIGHTS, AMERICAN BAR ASSOCIATION, 2001, http://www.abanet.org/irr/hr/winter01/musalo.html.

287. California,

, (Aug. 7, 2007) available at http://www.aclu-sc.org/releases/view/102548 (accessed June 25,

after 89-day ordeal,” August 8, 2007.

288. , No. 4:10-cv-142 (E.D.N.C. Oct. 13, 2010).

289. .

290. Brownsville, Texas, Department of State Health Services, Vital

291. Notice of Intent to Issue a Final Administrative Removal

292. U.S. Department of Homeland Security, Immigration and

293.

294. 8 C.F.R. § 235.3(b)(5).

262. See 8 U.S.C. § 1433(a).

263. Rethinking Removability, at 1822.

264. Rosenbloom , at 1972.

265. Interview with Gabriela Rivera, by email, June 3, 2014 (on

266. , No. 3:14-CV-01434 (S.D. Cal. June 12, 2014).

267. Interview with Gabriela Rivera, by email, June 3, 2014 (on

268. Interview with Peter V., Tijuana, Mexico, March 26, 2014

269.

270.

271. Interview with Peter V., Tijuana, Mexico, March 26, 2014

272.

273. , No. 1:14-CV-016, First Amended Petition for Writ of Habeas Corpus (S.D. Texas February

274. . at 3.

275. . at 6.

276. Interview with Jaime Díez, by telephone, June 10, 2014 (on

277. , No. 1:09-CV-00208 (S.D. Tex. 2009). See also, Jazmine Ulloa, , THE TEXAS OBSERVER (May 13, 2010), available at http://www.texasobserver.org/born-to-be-barred/.

278. The requirement to have a U.S. passport when crossing a land border is relatively recent (introduced in 2009) and has affected travel and life along the Mexico and Texas border in particular. The Western Hemisphere Travel Initiative (“WHTI”), which went into effect in June 2009, requires that U.S. citizens have a passport to enter the United States at a land border crossing. Intelligence

§ 7209, 118 Stat. 3638, 3823-24, § 546, 120 Stat. 1355, 1386-87 (2006),

8 U.S.C. §1185 (2012)); see 22 C.F.R. § 53.1 (2013). However, at the time, CBP had a policy of permitting applicants for admission

instead of a passport.” complaint at 13.

279. , 1:09-CV-00208 (2009).

280. Jazmine Ulloa, , .





313. .

314. .

315. Megan K. Stack, , ASSOCIATED PRESS, June 10, 2000, available at http://amarillo.com/

316. , No. 03-40420 (5th Cir. 2003);

Megan K. Stack, .

317. 8 U.S.C. § 1101(a)(13)(C).

318. . §§(a)(13(C)(i)-(ii). These are not the only ways a person can be seen as abandoning their status and is no longer entitled a hearing. The statute states: “(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien--(i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings, (v) has committed an

offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, or (vi) is attempting to enter at a time or place

admitted to the United States after inspection and authorization by an

319.

320.

321. , 608 F.3d 325, 329 (7th Cir. 2010).

322. , 741 F.3d 1016, 1021 n.4 (9th Cir. 2014) (“We do not evaluate the merits of the

8 U.S.C. § 1252(e)(5) (barring judicial review of “whether the alien is actually inadmissible or entitled to any relief from removal”), nor do we inquire as to whether, had Smith made an honest request to enter for business purposes, as a temporary visitor or otherwise, he might have been granted a visa to do so.”).

323. . at 1022 n.6 (“we need not reach the question whether and under what circumstances a petitioner who establishes none of the permissible bases under § 1252(e)(2) might still have claims under the Suspension Clause.”).

324.

325.

295.

Special Agents in Charge, and Chief Counsels (Nov. 19, 2009), available at www.ice.gov/doclib/detention-reform/pdf/usc_guidance_nov_2009.pdf (providing the most recent guidance in a series of memoranda, and stating that “[a]s a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and/or detain a [U.S. citizen]”).

296. 8 C.F.R. § 1235.3(b)(5)(iv) (providing for a claimed status review hearing, at which an Immigration Judge reviews an expedited

refugee, asylee, or United States citizen).

297. .

298. Interview with Timothy D., by telephone, May 31, 2014 (on

lives in Canada, is a U.S. citizen and that he has two approved I-130 applications.


300.

301. .

302. U.S. Department of Homeland Security, Record of


304.


306. Interview with Francisco by email, May 20 and 21, 2014 (on

307.

308.

309. .

310.

311. There is a statutory cap on the number of U visas that can be issued each year; thus, many people who are approved for a U visa cannot get the visa immediately and must wait until the following

receiving a U visa, an individual receives deferred action and should not be removed.

312. Interview with Guadeloupe, by telephone, May 28, 2014 (on





determine whether an individual might be eligible for cancellation,

to place such a person in expedited removal.”), available at https://shusterman.com/pdf/ailf81304.pdf.

343. Interview with Wendy D.G., Miami, Florida, April 9, 2014

344.

345. .

346. .

347. Interview with Inocencia C., Orange, California, March 22,

348.

349. Interview with Claudia D., by telephone, April 12, 2014 (on


351. U.S. Department of Homeland Security, Expedited Removal


353. .

354. involvement and were later deemed credible evidence by a U.S.


356.

357. ACLU OF NEW MEXICO, TORN APART: HOW U.S. IMMIGRATION POLICY FRAGMENTS NEW MEXICAN FAMILIES, (2014), available at http://www.aclu-nm.org/wp-content/uploads/2013/04/tornapart_030113_05_web05.pdf ; see also

border,” MSNBC, July 22, 2014, available at http://www.msnbc.com/msnbc/many-deported-recent-border-crossers-arent-recent-or-near-the-border.

358. TORN APART, note 357, at 10-11.

359. As earlier explained, there are two forms of voluntary departure: (a) voluntary departure that is granted by an immigration judge at either the outset or conclusion of formal removal hearings; and (b) voluntary return that is administered and issued by an

return.

360. “Voluntary departure may not be granted unless the alien

326. Interview with Marisol Pérez, San Antonio, Texas, April 23,

327.

328.

329. Interview with Antonio, by telephone, March 15, 2014 (on

330. a person was issued an expedited removal order, and the grounds upon which a person found to be misrepresenting themselves; this FOIA information was not provided and its provision is currently being litigated.

331. Interview with Roland J., by telephone, March 12, 2014 (on

332.

333.

334.

335. Canada and Mexico.

336. Interview with Timothy D., by telephone, May 13, 2014 (on

337.

338.

339. See generally, Congressional Research Service, Immigration Policy on Expedited Removal of Aliens, at 3 (September 30, 2005), available at http://fpc.state.gov/documents/organization/54512.pdf.

340. , 142 U.S. 651, 660 (1892).

341. , , 345 U.S. 206, 212 (1953) (non-citizens yet to be admitted are not entitled to the same panoply of rights as non-citizens who have entered the United States, even unlawfully) , 533 U.S. 678, 693 (2001) (“once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to

presence here is lawful, unlawful, temporary, or permanent”).

342.

, August 13, 2004 at 6 (noting that “It is possible that individuals who have resided in the United States for ten years or longer will be placed in interior expedited removal. Although short absences from the U.S. will not break the

will treat any absence from the country as breaking the fourteen-day presence requirement for internal expedited removal. … There





days or more in prison (which can include a suspended sentence). Thus, for Ricardo, whether or not “conspiracy to commit burglary” was a crime that fell within the aggravated felony category at that time, the reduction of his sentence to 364 days meant that his conviction could never be an aggravated felony.

378. In March 2010, in , the U.S. Supreme Court held that failure to inform a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement constituted ineffective assistance of counsel and could be the basis of a claim under the Sixth Amendment to the U.S. Constitution. Such a claim allows an individual to vacate the criminal conviction that led, as a collateral consequence, to his or her deportation. However, in 2013, the Supreme Court held that this decision did not apply retroactively to criminal convictions entered before March 2010. , 133 S.Ct. 1103 (2013).

379. For many years, the Department of Homeland Security argued that crimes involving drug possession were aggravated

recent years, the U.S. Supreme Court has since determined that many low-level drug crimes that have been prosecuted as aggravated

example, in , 127 S.Ct. 625 (2006), the Supreme Court held that simple possession offenses (misdemeanors under federal law) are not aggravated felonies. And in

, 133 S.Ct. 1678 (2013), the Supreme Court held that “social sharing of a small amount of marijuana” (sometimes prosecuted as “possession with intent to sell”) is not an aggravated felony. In its decision, the Court further observed, “This is the third time in seven years that we have considered whether the Government has properly

. at 1693. See generally, IMMIGRANT DEFENSE PROJECT, “Drug Aggravated Felonies,” available at http://immigrantdefenseproject.org/litigation/drug-aggravated-felonies.

380. , No.4:10-cr-0397, Memorandum and Order (S.D. Tex. Nov. 16, 2010).

381. Statement of Secretary Jeh C. Johnson, U.S. Department of Homeland Security Before House Committee on Homeland Security, June 24, 2014, available at http://docs.house.gov/meetings/HM/HM00/20140624/102395/HHRG-113-HM00-Wstate-JohnsonJ-20140624.pdf.

382. UNITED NATIONS HIGH COMMISSION FOR REFUGEES, CHILDREN ON THE RUN: UNACCOMPANIED CHILDREN LEAVING CENTRAL AMERICA AND MEXICO AND THE NEED FOR INTERNATIONAL PROTECTION (“UNHCR Report”) 39 (May 2014), available at http://www.unhcrwashington.

children who experienced dangerous and traumatic journeys to the

United States: “The conditions in Central America have deteriorated to such a point that, when the WRC asked the children if they would

such voluntary departure to its terms and conditions.” (emphasis added). 8 C.F.R. § 240.25 (c).

361. , 13-cv-03972-JAK (C.D. Cal. 2013).

362. 8 U.S.C. § 1182(a)(9)(B)(i)(II).

363. 8 U.S.C. § 1182(a)(9)(B)(i)(I).

364. Interview with Veronica V., by telephone, April 23, 2014 (on

365. .

366. .

367. Interview with Emmanuel M., by telephone, June 13, 2014

368. .

369. .

370. ., No. B-13-108 (S.D. Tex. 2013).

371. Interview with Marisol Pérez, San Antonio, Texas, April 23,

372. Cal. June 4, 2013).

373. “Aggravated felonies” include crimes that, under state criminal laws, are not necessarily felonies and may not even include a term of imprisonment. The Immigration and Nationality Act (INA)

ranging from tax evasion to rape, listed at 8 U.S.C. § 1101(a)(43), and what is considered an aggravated felony varies in accordance with state law. Some aggravated felonies do require that the individual was sentenced for a period of 365 days or more for the crime to constitute an aggravated felony—for example, burglary, a crime of theft, or a crime of violence. Even if the person never actually served any time in prison for the offense—for example, if the person receives a “suspended sentence” from a criminal court but is not required to serve all or any part of that sentence in prison—his or her crime can be considered an aggravated felony.

374. See turpitude.”).

375. Interview with Ricardo S., by telephone, March 10, 2014

federal public defender in Arizona and the immigration attorney

prosecution for illegal reentry under 8 U.S.C. § 1326. All interviews

376. Interview with Ricardo S., by telephone, March 10, 2014 (on

377. A crime of theft or burglary is a crime that is considered to be an aggravated felony only when the individual is sentenced to 365





8 U.S.C. §§ 1232(a)(2)(B), (a)(5)(D). That said, children are not

two children, ages two and 14, who traveled with their mother; all three were issued expedited removal orders in Texas. Recent data on ICE apprehensions, procured and calculated from The New York Times FOIA data on removals, shows that 83 children were issued expedited removal orders (and 74 received reinstated orders of

393. .

394. Special Immigrant Juvenile Status is available to non-citizen children who have been abused, neglected, or abandoned or another similar basis under state law by one parent or both; these children, if approved, can later become lawful permanent residents and work lawfully in the United States. See INA § 101(a); 8 U.S.C. § 1101(a)(27)(J).

395. See

5044 (2008), TVPRA § 1232(a)(5)(D)(i).

396. Services (DUCS) is responsible for placing unaccompanied children in appropriate housing throughout their immigration proceedings. Most children who are not released to family or sponsors are housed in shelters, although the full range of placements includes secure facilities and temporary foster care. See generally, Department of Health and Human Services, Factsheet: U.S. Department of Human

Refugee Resettlement, Unaccompanied Alien Children Program, (May 2014), available atorr/unaccompanied_childrens_services_fact_sheet.pdf.

397. NATIONAL IMMIGRANT JUSTICE CENTER, “U.S. Government Held Hundreds of Immigrant Children in Adult Detention Facilities, Sometimes for Weeks,” June 4, 2014, available at http://www.immigrantjustice.org/press_releases/us-government-held-hundreds-immigrant-children-adult-detention-facilities#.U5cklSi5K1h; DEPARTMENT OF HOMELAND SECURITY, OFFICE OF INSPECTOR GENERAL, CBP’S HANDLING OF UNACCOMPANIED ALIEN CHILDREN, Sept. 2010, available at http://trac.syr.edu/immigration/library/P5017.pdf

were adequately trained with respect to the Agreement and that DHS had developed a one-hour training but only 35 percent of agents in FY 2008 and 40 percent of agents in FY 2009 had completed that training); see generally

, 95 MARQ. L. REV. 1635 (2012).

398. In the preamble to the Convention on the Rights of the Child, the United Nations recognized that the “child, by reason of his physical and mental maturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” Convention on the Rights of the Child (“CRC”), adopted Nov. 20, 1989, GA Res. 44/25, Annex, UN GAOR 44th Session, Supp. No. 49 at 166, UN Doc. A/44/49 (1989).

risk the dangerous journey north through Mexico all over again now that they had direct knowledge of its risks, most replied that they would. They said that staying in their country would guarantee death, and that making the dangerous journey would at least give them a chance to survive. Many of them expressed a longing for their homelands, stating that they would not have left but for fear for their lives.” WOMEN’S REFUGEE COMMISSION, FORCED FROM HOME: THE LOST BOYS AND GIRLS OF CENTRAL AMERICA, 7 (Oct. 2012).

383. U.S. Department of Homeland Security, Statement by Secretary of Homeland Security Jeh Johnson Before the Senate Committee on Appropriations, July 10, 2014, available at http://www.dhs.gov/news/2014/07/10/statement-secretary-homeland-security-jeh-johnson-senate-committee-appropriations.

384. Memorandum for the Heads of Executive Departments and Agencies,

see also Dianne Solís and Alfredo Corchado, , DALLAS MORNING NEWS, June

7, 2014, http://www.dallasnews.com/news/headlines/20140607-immigrant-children-seeking-sanctuary-face-bleak-future.ece; see generally, CONGRESSIONAL RESEARCH SERVICE, UNACCOMPANIED ALIEN CHILDREN: AN OVERVIEW, June 23, 2014, available at http://fas.org/sgp/crs/homesec/R43599.pdf.

385. 8 U.S.C. § 1232(a)(5)(D) (“Any unaccompanied alien child sought to be removed by the Department of Homeland Security, except for an unaccompanied alien child from a contiguous country . . . shall be placed in removal proceedings under section 240 of the Immigration and Nationality Act.”).

386. no lawful immigration status in the United States; has not attained 18 years of age; and with respect to whom there is no parent or legal guardian in the United States; or no parent or legal guardian in the United States is available to provide care and physical custody.” 6 U.S.C. § 279(g).

387. The INS was later dissolved and replaced by the Department of Homeland Security and the U.S. Citizenship and Immigration Services.

388. , HUMAN RIGHTS WATCH, SLIPPING THROUGH THE CRACKS: UNACCOMPANIED CHILDREN DETAINED BY THE U.S. IMMIGRATION AND NATURALIZATION SERVICE (1992).

389. Stipulated Settlement Agreement, , No. CV 85-4544-RJK (Px) (C.D. Cal. Jan. 17, 1997) (“the Flores Settlement”), available atmeese_agreement.pdf.

390. ; 8 U.S.C. § 1232(c)(2)(A).

391. 8 C.F.R. § 236.3.

392. 619 F. Supp. 656 (C.D. Cal. 1985). Although was decided prior to 1996 and the introduction of most summary removal statutes at issue in this report, its protections for children survive.





410. at 16.

411.

412. .

413. While “contiguous” countries includes children from Canada and Mexico, in practice, the law distinguishing between children from contiguous and non-contiguous countries appears to be concerned with Mexican children, given both its legislative history and the number of children arriving from Mexico.

414. The 2014 UNHCR study based on interviews of unaccompanied children found that 64 percent of Mexican children had potential international protection needs; of those children, “[32 percent] spoke of violence in society, 17 percent spoke of violence in the home and 12 percent spoke of both” while “[a] striking 38 percent of the children from Mexico had been recruited into the human smuggling industry—precisely because of their age and vulnerability.” UNHCR Report, n. 19, at 11.

415. REFUGEES INTERNATIONAL, MEXICO’S UNSEEN VICTIMS, 3-4 (July 2, 2014), available at http://refugeesinternational.org/sites/default/

letterhead.pdf. Some Mexican children, Refugees International

should be able to apply for asylum based on their use, by non-state actors, as child combatants. . at 7.

416. 8 U.S.C. § 1232(a)(2). In addition to Form 93, which is the TVPRA screening form used to determine the existence of a

to be presented with the I-770 form, to establish their consent to

determine whether a child has an asylum claim or is at risk of being

417. 8 U.S.C. § 1232(a)(2), (a)(5)(D)(i).

418. 8 U.S.C. § 1232(e). Furthermore, if after determining that the child can be removed and does not meet the TVPRA protective

to pursue a removal order (as opposed to voluntary departure), the child must be referred to regular immigration proceedings in front of a judge and also transferred to ORR custody. 8 U.S.C. § 1232(a)(5)(D)(i). Even without this screening checklist,

removal proceedings rather than require them to take voluntary

use of this option.

419. U.S. Customs and Border Protection, , available at http://www.cbp.gov/

newsroom/stats/southwest-border-unaccompanied-children (accessed July 1, 2014); see also Betsy Cavendish and Maru Cortazar, APPLESEED, CHILDREN AT THE BORDER: THE SCREENING, PROTECTION AND REPATRIATION OF UNACCOMPANIED MEXICAN MINORS (Appleseed Report), 49 (2011), available at http://appleseednetwork.org/wp-content/uploads/2012/05/Children-At-The-Border1.pdf.

399. Interview with Kevin G., Nogales, Mexico, March 3, 2014

400.

401. As a report from the Congressional Research Service

and Removal (DRO) of DHS has the mission of enforcing U.S. immigration laws to ensure the departure from the United States of all removable aliens” (internal citations omitted). CONGRESSIONAL RESEARCH SERVICE, UNACCOMPANIED ALIEN CHILDREN: POLICIES AND ISSUES, 14 (2007), available at http://www.rcusa.org/uploads/pdfs/

402.

Regarding Systemic Abuse of Unaccompanied Immigrant Children

(June 11, 2014), available at http://www.acluaz.org/sites/default/

403. General of the Department of Homeland Security has reviewed 16 of the complaints and stated that it was unable to substantiate those complaints. See Memorandum to Secretary Jeh C. Johnson from John Roth, Inspector General,

, (July 30, 2014), available at http://www.oig.dhs.gov/assets/Mgmt/2014/Over_Un_Ali_Chil.pdf; Memorandum to Secretary Jeh C. Johnson from John Roth, Inspector General,

, (Aug. 28, 2014), available at http://www.oig.dhs.gov/assets/pr/2014/Sig_Mem_Over_Unac_Alien_Child090214.pdf. Advocates, however, claim that the OIG did not adequately or sensitively investigate the initial 16 of the 116 complaints and that they continue to receive similar complaints regarding inappropriate detention conditions and abuse from unaccompanied children. National Immigrant Justice Center, “DHS Inspector General Fails to Adequately Investigate Abuse of Detained Immigrant Children,” Sept. 3, 2014, available at http://www.immigrantjustice.org/press_releases/dhs-inspector-general-fails-adequately-investigate-abuse-detained-immigrant-children.

404. Interview with Maria, February 28, 2014, Agua Prieta,

405. Interview with Mexican immigration staff, February 28,

406. M. Aryah Somers, Draft,

407. . at 8.

408. .

409. n. 402.





438. . at 36.

439. . at 39.

440. at 27, June 2014.

441. . at 29.

442. Appleseed Report, n. 419.

443. at 49-50.

444. at 40.

445. Interview on March 3, 2014, Nogales, Sonora, Mexico (on

446. See also,

UNHCR Report, children interviewed raised international protection concerns.

447. Erin Siegal McIntyre, , FUSION,

July 11, 2014, available at http://fusion.net/justice/story/kids-equal-central-american-kids-court-date-mexicans-845375.

448. Appleseed Report, n. 419, at 36.

449.

450. Fawn Johnson, NATIONAL JOURNAL, July 16,

2014, available at http://www.nationaljournal.com/congress/there-

20140716?ref=nj_daily.

451. .

452. See 8 C.F.R. § 236.3; , 619 F. Supp. 656 (C.D. Cal. 1985).

453. 8 C.F.R. § 1236.3(g) (“Each juvenile, apprehended in the immediate vicinity of the border, who resides permanently in Mexico or Canada, shall be informed, prior to presentation of the voluntary departure form or being allowed to withdraw his or her application for admission, that he or she may make a telephone call to a parent, close relative, a friend, or to an organization found on the free legal services list. A juvenile who does not reside in Mexico or Canada who is apprehended shall be provided access to a telephone and must in fact communicate either with a parent, adult relative, friend, or with an organization found on the free legal services list prior to presentation of the voluntary departure form. If such juvenile,

does in fact make such contact, the requirements of this section are


420. APPLESEED

Estudios Migratorios de la Unidad de Política Migratoria de la SEGOB).

421. U.S. Department of Health and Human Services, About available at https://www.acf.

2014).

422. n. 16, at 14.

423. Interview with Arturo, Nogales, Mexico, March 3, 2014 (on

424. to refer the child for a formal removal hearing, but as the TVPRA screening (when it occurs) does not include any questions about

States.

425. Interview with Hector, Nogales, Mexico, March 3, 2014 (on

426. Interview with Brian, Nogales, Mexico, March 3, 2014 (on

427. M. E. interview with legal services organization in California,

428. n. 402 at 17.

429. .

430. Interview with Hiram and Pepe, Nogales, Mexico, March 3,

431.

432. 8 C.F.R. § 236.3(h).

433. CENTER FOR PUBLIC POLICY PRIORITIES, A CHILD ALONE AND WITHOUT PAPERS: A REPORT ON THE RETURN AND REPATRIATION OF UNACCOMPANIED UNDOCUMENTED CHILDREN BY THE UNITED STATES, at 40, (2008) (“CPPP Report”), available at http://forabettertexas.org/images/A_Child_Alone_and_Without_Papers.pdf.

434. Interview with Mexican immigration staff in Nogales,

435. . at 48.

436. , N.Y TIMES, July 15, 2014, available at http://

takingnote.blogs.nytimes.com/2014/07/15/beware-john-cornyns-humane-immigration-act/?_php=true&_type=blogs&_php=true&_type=blogs&_r=1&.

437. n. 16 at 14.





article.exm/2011-08-17_cbp_agent_pleads_guilty_to_harassment; Interview with Greg Boos, by telephone, January 17, 2014 (on

source that reviewed CBP data, between 2007 and 2010, 422 individuals were issued expedited removal orders in the area where Helle worked (Blaine, Washington); 55 of those orders came from Helle alone. Kathy Tomlinson,

, CANADIAN BROADCASTING CORPORATION, Sept. 27, 2011, available at http://www.cbc.ca/news/canada/british-columbia/ex-u-s-

467. Kathy Tomlinson, n. 466; see also

Expedited Removal, Sept. 20, 2011 (requesting that CBP review

468. Interview with Cathy Potter, by telephone, July 3, 2014 (on

469. See Section I. A.-E., on the temporal, procedural, and substantive limits of judicial review available for expedited removal, reinstatement, administrative removal, and stipulated orders of removal.

470. The Board of Immigration Appeals, as well as some courts, has determined that a person seeking review of a prior removal order must demonstrate a “gross miscarriage of justice” for a court to undo the order. , 14 I&N Dec. 110, 111-12 (BIA 1972); , 359 F. Appx 370, 372 (4th Cir. 2009) (per curiam); , 436 F.3d 508 (5th Cir. 2006);

, 183 Fed.Appx. 425 (5th Cir. 2006). In the Ninth Circuit, individuals seeking to collaterally attack a deportation order must show that the order was fundamentally unfair because the orders violated due process and the individuals were prejudiced by that violation. , 364 F.3d 1042, 1048 (9th Cir. 2004) (internal quotation marks and citation omitted).

471. Rachel Rosenbloom, ,

33 U.HAWAI’I L. REV. 139, 183 (2011).

472. Although rejected by 10 federal circuit courts of appeal, the Board of Immigration Appeals, which reviews appeals of immigration judge decisions, maintains that there is a post-departure

even if involuntary, is “a transformative event that fundamentally

better position after departure than any other alien who is outside the territory of the United States.” , 24 I&N Dec. 646, 656 (B.I.A. 2008) (emphasis in the original). See generally

65 SMU L. REV

observes that despite all the impediments built against individuals seeking review of their case post-deportation, “the entire discussion

455. . The Form 93 is not publicly available on the CBP website

Appleseed noted that it was able to procure a heavily redacted copy of the form only in response to their 2010 FOIA.

456. . at 36.

457. .

458. .

459. Prieta, Sonora, Mexico.


461.

462. Interview with Greg Boos, by telephone, January 17, 2014

where a supervisor will vacate the order, there may still be retaliatory consequences for the individual returning to the United States. In one case, Boos says, a client had been accused of overstaying her visa but a FOIA proved that to be untrue; although the deportation order was rescinded, according to Boos, the supervisor said his client was “really going to have to prove her non-immigrant intent” in the

retaliate.”

463. Interview with Greg Boos, by telephone, January 17, 2014 see also, Michael Platt,

, CALGARY SUN, Feb. 11, 2013, available at http://www.calgarysun.com/2013/02/11/canadian-actor-chad-rook-barred-

, FORBES, Feb. 21, 2013, available at http://www.forbes.com/sites/kashmirhill/2013/02/21/the-privacy-price-to-cross-the-border/; CTV BRITISH COLUMBIA,

, Jan. 9, 2014, available at http://bc.ctvnews.ca/b-c-actor-credits-media-attention-for-overturning-border-ban-1.1632570#ixzz36okzWcFC.

464. Operations, U.S. Customs and Border Protection, Dec. 30, 2013 (on

465.

466.

point along the side of the neck. . . . I told the driver, ‘You can drive any way you want to in Canada. But if you drive that way down

car and left.” Declaration of Joel J. Helle in Support of Notice of Removal, , NO. CV11-971,

See also Jeremy Schwartz, , NORTHERN LIGHT, Aug.

17, 2011, available at http://www.thenorthernlight.com/news/





485. Interview with Ken McGuire, by telephone, February 11,

486. ICE has explicit civil immigration enforcement priorities (for apprehension, prosecution, and removal), which include non-citizens who pose a national security risk, fugitives, and recent unlawful entrants. See U.S. Customs and Immigration Enforcement, John Morton, Director, Memorandum, Civil Immigration Enforcement Action: Priorities for the Apprehension, Detention, and Removal of Aliens, March 2, 2011, available at https://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf; U.S. Customs and Immigration Enforcement, John Morton, Director, Memorandum, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” June 17, 2011, available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.

487. Interview with Pancho, Nogales, Mexico, March 3, 2014 (on

488.

489.

490. Interview with Alex B., by telephone, January 17, 2014 (on

491. Shoba S. Wadhia, 5 COLUM. J. RACE & L. 1, 21 (2014). Similarly,

a large number of appeals in circuit court come from asylum or withholding-based claims. Stacy Caplow,

, 7 NW. J.L. & SOC. POL’Y 1 (2012).

492. Shoba S. Wadhia, n. 491, at 21. Similarly, a large number of appeals in circuit court come from asylum or withholding-based claims. Stacy Caplow,

, 7 NW. J.L. & SOC. POL’Y 1 (2012).

493. C.F.R. § 214.14(c)(5)(i) (“For a petitioner who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as

494. U.S. Department of Homeland Security, U.S. Citizenship and

(T) and Victims of Crime Form I-918 (U) Visa Statistics (FY2002-FY2012),” (2012) available at http://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-form-i-914-application-t-nonimmigrant-status (accessed on June 17, 2014). Even those who are “approved” for U visas, however, do not immediately get them, as there is a statutory cap of 10,000 U visas per year. Individuals who are approved for a U visa but cannot get one due to the cap are given a Notice of Conditional Approval given deferred action and placed on a waiting list until the next year. See U.S. Citizenship and Immigration Services, “USCIS Approves 10,000 U Visas for 5th Straight Fiscal Year,” (Dec. 11, 2013); see generally, ASISTA

by the specter of its opposite: failure to depart. As the Supreme Court repeatedly noted in the days before IIRIRA, the reason that motions to reopen were particularly disfavored in the deportation or removal context was that ‘every delay works to the advantage of the

For the person who is already outside the United States, there is nothing to be gained by a motion to reopen or reconsider unless it is meritorious.” Rosenbloom, at 181.

473. Interview with Carlos S., Tijuana, Mexico, March 24, 2014

474. Interview with Juan C., Tijuana, Mexico, March 24, 2014 (on

475.

476. According to FOIA data obtained by The New York Times

received reinstatement orders from ICE were apprehended through the “criminal alien program” (CAP) and were not necessarily living

477. INA §§ 212(a)(9)(C)(i)(II), (C)(ii).

478.

479. Interview with Nancy Falgout, by telephone, January 14,


481. Interview with Enrique, Tijuana, Mexico, March 25, 2014 (on

482. An in absentia order of removal can be entered against a person who does not show up at their immigration hearing if the government can demonstrate, by clear, convincing, and unequivocal evidence, that the proper written notice was provided and that the individual was removable. 8 C.F.R. § 1003.26. This report does not focus on individuals in this category, who could have seen a judge but for whatever reason, missed their hearings and were subsequently ordered removed by an immigration judge. However,

people who were deported with in absentia orders who said they had never received notice of their hearing, some of whom appeared to have very strong immigration cases and every incentive to appear

parent raising four U.S. citizen children and who had been in the United States for approximately 26 years, paid a lawyer who never informed him of the court date. Since his deportation, he says, his three younger children have been staying with friends.

483. Interview with Marcos V., Tijuana, Mexico, March 25, 2014






considered as criminal defendants two years ago.” Joe Palazzollo and Miriam Jordan, , WALL ST. JOURNAL, May 31, 2013, available at http://online.wsj.com/article/SB10001424127887323336104578499480108652610.html.

505. SeeWAREHOUSED AND FORGOTTEN: IMMIGRANTS TRAPPED IN OUR SHADOW PRIVATE PRISON SYSTEM, June 2014, available ataclu-car-reportonline.pdf.

506. GRASSROOTS LEADERSHIP, OPERATION STREAMLINE: COSTS AND CONSEQUENCES (Sept. 2012), available at http://grassrootsleadership.

prosecutions for illegal entry and reentry continue to rise, and their corresponding costs should be expected to rise as well.

507. , supra n. 98,

Syracuse University: Transactional Records Clearinghouse (TRACfed), n. 98.

508. FY 2013 DHS data provided to The New York Times

509. Interview with Victoria Trull, by telephone, March 2, 2014 see also, HUMAN RIGHTS WATCH, TURNING

MIGRANTS INTO CRIMINALS, n. 502 at 46 (quoting one federal defender as saying three-quarters of her clients charged with illegal reentry never saw an immigration judge).

510. Interview with Veronica Trull, by telephone, March 2, 2014

511.

512. NATIONAL PUBLIC RADIO, , Sept. 13, 2010.

513. NPR, “Is Operation Streamline Worth Its Budget Being Tripled?” September 5, 2013, available at: http://www.npr.org/2013/09/05/219177459/is-operation-streamline-worth-its-budget-being-tripled.

514. Strategic Plan Not Yet in Place to Inform Border Security Status and Resource Needs,” December 2012, https://media.azpm.org/master/document/2013/1/9/pdf/gaoborderreport.pdf.

515. Interview with Felipe R., Reynosa, Mexico, April 17, 2014

516.

517. Interview with Francisco, Tijuana, Mexico, March 24, 2014

518. 8 U.S.C. § 1326(a).

519. , 481 U.S. 828, 838 (1987).

Stakeholder Teleconference (Dec. 11, 2013).

495. U.S. Citizenship and Immigration Services, “Removal

request and responses, ).]

496. Interview with Demetrio, Adelanto, California, March 28,

497.

498. Interview with Emmanuel M., by telephone, June 13, 2014

499. Interview with Elizabeth Badger, by telephone, January 13,

500.

501. Operation Streamline proceedings for illegal entry, in particular, have been criticized for their lack of due process. See

July 2014, available at

Reform should Eliminate Operation Streamline, available at https://see

generally, HUMAN RIGHTS WATCH, TURNING MIGRANTS INTO CRIMINALS (2013), available at http://www.hrw.org/reports/2013/05/22/turning-migrants-criminals-0. Judges combine the initial appearance, arraignment, plea, and sentencing into a single hearing, sometimes taking as few as 25 seconds per defendant. Fernanda Santos,

Border,” The New York Times, Feb. 11, 2014, http://www.nytimes.com/2014/02/12/us/split-second-justice-as-us-cracks-down-on-border-crossers.html.

502. 8 U.S.C. §§ 1325-1326 (2011); 18 U.S.C. § 3559 (2011).

503. U.S. DEP’T OF JUSTICE, SMART ON CRIME, REFORMING THE CRIMINAL JUSTICE SYSTEM FOR THE 21ST CENTURY, at 2 (Aug. 2013), available at http://www.justice.gov/ag/smart-on-crime.pdf.

504. As Judge Sam Sparks, U.S. District Court for the Western District of Texas, said, “The expenses of prosecuting illegal entry and reentry cases (rather than deportation) on aliens without any

American taxpayer that is neither meritorious nor reasonable.” MY FOX HOUSTON, , Feb. 7, 2010, http://www.myfoxhouston.com/story/18229445/federal-judge-questions-immigration-prosecutions. Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois and former Commissioner, U.S. Sentencing Commission,

make sense.” Forrest Wilder, , TEXAS OBSERVER Dec. 8, 2010, available at http://www.texasobserver.org/forrestforthetrees/the-lawsuit-west-of-the-pecos. Judge Robert C. Brack, on the U.S. District Court for the District of New Mexico, observed, “Every day I see people who would never have been





533. Interview with Inocencia C., Orange, California, March 22,

534. .

535. .

536. Interview with Ericka E.F., T. Don Hutto Residential Center,

537. Department of Homeland Security, U.S. Citizenship and Immigration Services, “Reinstatement of a Prior Order,” at 1 (p. 14

Procedures Manual,” Nov. 2007 (revised July 2010), at 136 (p. 49 of

538.

539.

540. Interview with Jacqueline Bradley Chacon, by telephone,

541. U.S. Department of Homeland Security, Immigration and Customs Enforcement,

, 7 (April 28, 2014) (and noting that “ICE also removed 14,892 aliens claiming a U.S.-born child who were apprehended along the borders while attempting to unlawfully enter the United States”), available atDepartment of Homeland Security, Immigration and Customs Enforcement,

, (April 28, 2014) available at

542. HUMAN IMPACT PARTNERS, HOW FAMILY-FOCUSED IMMIGRATION REFORM WILL MEAN BETTER HEALTH FOR CHILDREN AND FAMILIES, 8 (June 2013), available at http://www.familyunityfamilyhealth.org/uploads/images/FamilyUnityFamilyHealth.pdf; see generally, Seth Freed Wessler, APPLIED RESEARCH CENTER (now “Race Forward”), SHATTERED FAMILIES: THE PERILOUS INTERSECTION OF IMMIGRATION ENFORCEMENT AND THE CHILD WELFARE SYSTEM (November 2011), available at https://www.raceforward.org/research/reports/shattered-families?arc=1.

543.

544. Interview with Marisol Pérez, by telephone, February 26,

545. See generally AMERICAN IMMIGRATION LAWYERS ASSOCIATION,

, (2009) available at http://www.aila.org/content/default.aspx?bc=1016|6715|6721|8815|31024|30095. For example, an immigrant who was unlawfully present in the U.S. prior to

520. The exhaustion requirement “cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process.” 364 F.3d 1042, 1048 (9th Cir. 2004) (citing

, 249 F.3d 1180, 1183-84 (9th Cir. 2001)). The Due Process

deportation order be “considered and intelligent.” at 1049; see , 481 U.S. at 839. An alien who is not advised

of his rights cannot make a “considered and intelligent” waiver, and is thus not subject to the exhaustion of administrative remedies requirement of 8 U.S.C. § 1326(d). at 1049-1050.

521. , 228 F.3d 956, 960 (9th Cir. 2000).

522. For a non-citizen who is not a permanent resident of the United States and who wants to immigrate to the United States

residence. The approved I-130 makes the individual eligible for an immigrant visa if and when that becomes available. Immediate relatives, such as parents, spouses, or children of U.S. citizens, do not have to wait for a visa number whereas other relatives in “preference” categories are subject to the immigrant visa limit and must wait for a visa to become available. See generally, U.S. Department of Homeland Security, USCIS, “Instructions for Form I-130 Petition for Alien Relative,” available at http://www.uscis.

523. (S.D. Cal. Sept. 30, 2013).

524. , No.4:10-cr-0397, Memorandum and Order (S.D. Tex. Nov. 16, 2010).

525. , No. 4:13-cr-00611, (S.D. Tex. Jan. 30, 2014).

526. HUMAN RIGHTS WATCH, TURNING MIGRANTS INTO CRIMINALS, n. 502 at 63-64.

527. The Refugee Convention, n. 181, art. 31(1).

528. Interview with Soledad, San Francisco, California, February

529. .

530.

531. Under , a class-action lawsuit brought by

This case was brought in the Central District of California and

Robbins, No. 2:07-cv-03239-TJH-RNB (C.D. Cal. 2010).

532. Interview with Inocencia C., Orange, California, March





(2006), entered into force May 3, 2008, arts. 12-13 (requiring that governments “ensure effective access to justice for persons with disabilities ... including through the provision of procedural and age-appropriate accommodations” and further “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”).

560. U.N. Committee on the Rights of the Child, “Treatment of Unaccompanied and Separated Children Outside their Country of Origin,” General Comment No. 6, UN Doc. CRC/GC/2005/6 (2005), available at http://www2.ohchr.org/english/bodies/crc/docs/GC6.pdf, paras. 36 & 69 (“the unaccompanied or separated child should

representative”).

561. Body of Principles for the Protection of Persons Under Any Form of Detention and Imprisonment, Principle 17(2), G.A. Res. 43/173, Annex, U.N. Doc. A/Res/43/173 (Dec. 9, 1988).

562. ICCPR, n. 555, art. 14. According to the Human Rights Committee, the requirement of a competent, independent, and impartial tribunal “is an absolute right that is not subject to any exception.” Human Rights Committee, “Right to equality before courts and tribunals and to a fair trial,” General Comment No. 32, U.N. Doc CCPR/C/GC/32 (2007), ¶ 19.

563. American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American

oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm.

564. Inter-American Commission on Human Rights, Report No.

Guttlein and Rodolfo Izal Elorz v. Mexico, April 13, 1999, Section 70-1.

565. ICCPR, n. 555, art 2.

566. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 8 (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”).

567. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force

art. 14, sec. 1 (requiring countries to “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.”).

568. International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January

waiver under INA § 212(a)(9)(B)(v). An asylee or refugee subject to the three- or ten-year bar can seek a waiver under INA § 209(c). If an individual is subject to a permanent ban under 212(a)(9)(C)(i)(I), the options for a waiver are more limited. Certain individuals may still apply for waivers, such as Temporary Protected Status (TPS) applicants or asylees and refugees applying to adjust status. An undocumented victim of violence under the Violence Against Women Act (VAWA) can apply for a discretionary waiver of the fraud or misrepresentation bar if they meet certain criteria. , AMERICAN IMMIGRATION LAW FOUNDATION LEGAL ACTION CENTER,

(2009) available at http://www.ailf.org/lac/pa/lac_pa_fraudwaiver.pdf.

546.

547. Interview with Katie and Jorge R., by telephone, January 28,

548. .

549.

550.

551.

552.

553. .

554. , Inter-Am. Ct. H.R. (ser. C) No. 218, ¶ 97 (Nov. 23, 2010).

555. International Covenant on Civil and Political Rights (“ICCPR”), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966),

by the United States on June 8, 1992, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx, art. 13; see also Body of Principles for the Protection of Persons Under Any Form of Detention and Imprisonment, Principle 17(2), G.A. Res. 43/173, Annex, U.N. Doc. A/Res/43/173 (Dec. 9, 1988) (right of all detainees to receive legal assistance if he or she is unable to afford a lawyer), available at http://www.un.org/documents/ga/res/43/a43r173.htm.

556. U.N. Human Rights Committee, “The Position of Aliens Under the Covenant,” General Comment No.15, U.N. Doc. A/41/40 (1986), ¶¶ 9, 10.

557. United Nations,

, para. 67 (August 7, 2014).

558. ICCPR, art 13, n. 555.

559. International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (“CRPD”), adopted December 13, 2006, G.A. Res.61/106, U.N. Doc. A/61/49





576. , 509 U.S. 155 (1993).

577. IACHR, Report No. 51/96, Case 10.675, Haitian Centre for Human Rights (United States), March 13, 1997.

578. UNHCR CONFIDENTIAL REPORT, n. 16 at 25 (discussing

ground for not providing protection in the United States).

579. Refugee Convention, n. 189, art. 31.

580. UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum seekers and Alternatives to Detention, Guideline 1, (2012), available at http://www.unhcr.org/505b10ee9.html.

581. CRC, n. 398, arts. 3, 22; see also I/A Court H.R., Juridical Condition and Human Rights of the Child,” Advisory Opinion OC17/02, paragraphs 58-59 (August 28, 2002), available at http://www.corteidh.or.cr/docs/opiniones/seriea_17_ing.pdf.

582. U.N. Committee on the Rights of the Child, General Comment No. 6, at para. 84.

583. . ¶ 79.

584. UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, (2012) available at http://www.unhcr.org/505b10ee9.html, para. 54.

585. CRC, art. 37(b), n. 398; U.N. Convention on the Rights of the Child,

, U.N. Doc. CRC/C/DEU/CO/3-4 (Feb. 25, 2014); United Nations, Report of the United Nations Special Rapporteur on the Human Rights of Migrant Workers, Gabriela Rodríguez Pizarro, E/CN.4/2003/85, para. 75(a) (December 30, 2002) (“detention of children is permitted only as a measure of last resort and only when it is in the best interest of the child, for the shortest appropriate period of time and in conditions that ensure the realization of the rights enshrined in the Convention on the Rights of the Child”), available at http://www.unhchr.ch/Huridocda/Huridoca.

see also François Crépeau, U.N. Special Rapporteur on the human rights of migrants, “Migrant Children should not be Detained,” High-level Dialogue on international migration and development (October 2, 2013).

586. U.N. Convention on the Rights of the Child,

, U.N. Doc. CRC/C/PRT/CO/3-4 (Feb. 25, 2014).

587. U.N. Convention on the Rights of the Child,

, U.N. Doc. CRC/C/CHN/CO/3-4 (Oct. 4, 2013).

588. IACHR, Report No. 51/96, Case 10.675, Haitian Centre for Human Rights (United States), March 13, 1997 available at http://www.cidh.oas.org/annualrep/96eng/USA10675.htm.

(granting victims of racial discrimination “the right to seek ... just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”).

569. American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the

art. 25 (“Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed

570. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, opened for signature Nov. 4, 1950, entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11, entered into force 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively, art. 13 (“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has

571. Universal Declaration of Human Rights, n.564, art. 14.

572. American Convention on Human Rights, art. 22(8). The Inter-American Court for Human Rights, interpreting the American Convention, recently reiterated this “individual human right to seek and receive international protection on foreign territory.” Inter-American Court of Human Rights, Advisory Opinion OC-21/14,

Summary, Aug. 19, 2014.

573. (OHCHR),

, Guideline 7, para. 5, A/69/CRP.1, 23 July 2014.

574. OHCHR, note 8, Guideline 7.

575. The Refugee Convention, n. 189, art. 33. See also Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. res.39/46, annex, 39 U.N. GAOR Supp. (no. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, art. 3.; ICCPR,

n. 555, art. 7.; U.N. Human Rights Committee (UN HRC), General Comment 20, Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Forty-Fourth Session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 151 (2003).





need for detaining an asylum seeker) available at http://www.unhcr.org/505b10ee9.html; see also UNHCR, DETENTION OF REFUGEES AND ASYLUM SEEKERS (1986), available at http://www.unhcr.org/refworld/ docid/3ae68c43c0.html (giving the initial statement regarding the protections due to detainees).

598. See generally, HUMAN RIGHTS WATCH, FORCED APART: FAMILIES SEPARATED AND IMMIGRANTS HARMED BY UNITED STATES DEPORTATION POLICY (2007), available at http://www.hrw.org/reports/2007/07/16/forced-apart-0.

599. Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 78 (1948), art. 16(3). The Declaration also states, “Motherhood and childhood are entitled to special care and assistance.” UDHR, art. 25(2).

600. CRC, n. 398, art. 9(1).

601. U.N. HUMAN RIGHTS COMMITTEE,

, art. 23, July 27, 1990.

602. U.N. HUMAN RIGHTS COMMITTEE, , Nov. 4, 1986.

603. , Communication No. 930/2000, U.N. Doc. CCPR/C/72/D/930/2000 (2001).

589. , 387 U.S. 1, 37 (1967) (, 287 U.S. 45, 69 (1932)).

590. U.N. Committee on the Rights of the Child, General Comment No. 6, para. 69.

591. ICCPR, n. 555, art. 9(4).

592. U.N. Human Rights Committee, Communication No. 560/1993.

593. Human Rights Committee, General Comment No. 8, in Report of the Human Rights Committee, Human Rights Committee, U.N. GAOR, 37th sess., Supp. No. 40, Annex V at 95 (1982).

594. UNHCR DETENTION GUIDELINES: GUIDELINES ON THE APPLICABLE CRITERIA AND STANDARDS RELATING TO THE DETENTION OF ASYLUM-SEEKERS AND ALTERNATIVES TO DETENTION (2012), paras. 18–19 (providing that decisions to detain must be based on a “detailed and individualized assessment”) and para. 20 (establishing that mandatory or automatic detention is prohibited as arbitrary), available at http://www.unhcr.org/505b10ee9.html;

a violation of the right to liberty where detention of irregular migrants was automatic without consideration of individualized circumstances); U.N. Human Rights Committee,

, No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993, April 30, 199 paras. 9.2, 9.4 (holding that detention must be necessary “in all the circumstances of the case” and the grounds for detention must be “particular to . . . individuals”); Inter-American Commission for Human Rights (“IACHR”), REPORT ON IMMIGRATION IN THE UNITED STATES: DETENTION AND DUE PROCESS (Dec. 2010) ¶ 428 (disapproving “mandatory detention for broad classes of immigrants”) and paras. 35, 37, available at http://cidh.

DetentionAndDueProcess.pdf.

595. IACHR REPORT ON DETENTION, n. 591, paras. 39, 134 (“The burden of proof must be on the authority ordering detention or denying parole, not on the immigrant”); UNHCR Detention Guidelines, n. 591, para. 47(v) (“[The] burden of proof to establish the lawfulness of the detention rests on the authorities in question”); see Human Rights Comm., Shams et al v. Australia, Communication Nos. 1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004, U.N. Doc CCPR/ C/ 90/ D/ 1255, 1256, 1259, 1260, 1266, 1268, 1270, and 1288/2004 (2007), para. 72 (holding that a government must advance grounds “particular to [individual] cases which would justify their continued detention”); Human Rights Comm., , note 79, ¶ 9.4 (holding that a

to be designated as arbitrary).

596. U.N. COMMISSION ON HUMAN RIGHTS, REPORT OF THE WORKING GROUP ON ARBITRARY DETENTION, A/HRC/13/30, January 18, 2010, para. 59.

597. See Shams et al v. Australia, supra n. 592; UNHCR, DETENTION GUIDELINES, n. 591, Guideline 4 (prohibiting arbitrary detention and requiring individualized assessment of the





E very year, hundreds of thousands of people (83 percent) are deported from the United States without a

hearing. These individuals never see a judge; instead, their rights and fates are determined by a single immigration enforcement officer in a summary removal procedure that can take mere minutes. The officer issuing a deportation order is the same officer who arrests, detains, prosecutes, and deports the individual; there is no independence, no opportunity for the individual to speak to a lawyer, and no meaningful opportunity for the individual to defend his or her rights to be in the United States. Those deported in these near-instantaneous removal procedures—which are used in over 83 percent of all deportations—include U.S. citizens, longtime residents with U.S. citizen children, asylum seekers, and individuals with valid work and tourist visas. While a person can be ordered removed and deported in a matter of hours, the consequences and ramifications of these removal orders can last a lifetime; individuals are banished for years, sometimes for life, and with almost no opportunity to fix an unfair or even illegal removal order. This report documents 136 cases of individuals who faced deportation from the United States without the basic opportunity to be heard in court—in some cases, with shattering consequences for them and their U.S. citizen family.




Office of Immigration Statistics POLICY DIRECTORATE

Immigration Enforcement Actions: 2013JOHN F. SIMANSKI

Each year, the Department of Homeland Security (DHS) undertakes immigration enforcement actions involving hundreds of thousands of aliens who may be or are in violation of U.S. immigration laws. These actions include the apprehension or arrest, detention, return, and removal from the United States of aliens (see Box 1). Aliens may be removable from the United States for violations including illegally entering the United States, failing to abide by the terms and conditions of admission, or committing crimes. Primary responsibility for the enforcement of immigration law within DHS rests with U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS). CBP is generally responsible for immigration enforcement at and between the ports of entry, and ICE is generally responsible for interior enforcement, and detention and removal operations. USCIS is generally responsible for the administration of immigration and naturalization functions (see APPENDIX).

This Office of Immigration Statistics (OIS) Annual Report presents information on aliens determined inadmissible, apprehended, arrested, detained, returned, or removed, during 2013.1 Key findings in this report include:

• CBP determined approximately 204,000 aliens were inadmissible.

• DHS apprehended approximately 662,000 aliens; 64 percent were citizens of Mexico.

• ICE detained nearly 441,000 aliens.

• Approximately 178,000 aliens were returned to their home countries through processes that did not require a removal order.

• DHS removed approximately 438,000 aliens from the United States.2 The leading countries of origin for those removed were Mexico (72 percent), Guatemala (11 percent), Honduras (8.3 percent), and El Salvador (4.8 percent).

• Expedited removal orders accounted for 44 percent, of all removals.

• Reinstatements of final orders accounted for 39 percent, of all removals.

• ICE removed approximately 198,000 known criminal aliens from the United States.3

1 In this report, years refer to fiscal years (October 1 to September 30).

2 Includes removals, counted in the year the events occurred, by both ICE and CBP. Removals and returns are reported separately.

3 Refers to persons removed who have a prior criminal conviction.

ENFORCEMENT ACTIONS PROCESS

Inspection Process

All aliens who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States are inspected. CBP officers within the Office of Field Operations (OFO) determine the admis-sibility of aliens who are applying for admission to the United States at designated ports of entry. Applicants for admission determined to be inadmissible may be, as appropriate, permitted to voluntarily withdraw their application for admission and return to their home country, processed for expedited removal or referred to an immigration judge for removal proceedings. CBP officers may transfer aliens issued a charging document (e.g., Notice to Appear (NTA), Notice of Referral to an Immigration Judge) to ICE for detention and custody determinations. Aliens who apply under the Visa Waiver Program (VWP) who are found to be inadmissible are refused admission without referral to an immigration judge, per Section 217 of the Immigration and Nationality Act (INA), unless the alien requests asylum.

Apprehension Process

Aliens who enter without inspection between ports of entry and are apprehended by U.S. Border Patrol (USBP) of CBP may be, as appropriate, removed, permitted to return to their country, or issued a NTA to commence proceedings before the immigration court. Aliens issued a charging document are either transferred to ICE for deten-tion and custody determinations pending a hearing or




BOX 1.

Definitions of Immigration Enforcement Terms

Administrative Removal: The removal of an alien not admitted for permanent residence, or of an alien admitted for permanent residence on a conditional basis pursuant to section 216 of the INA, under a DHS order based on the determination that the individual has been convicted of an aggravated felony (INA § 238(b)(1)). The alien may be removed without a hearing before an immigration judge.

Alien: A person who is not a citizen or national of the United States.

Deportable Alien: An alien inspected and admitted into the United States but who is subject to removal under INA § 237(a).

Detention: The physical custody of an alien in order to hold him/her, pending a determination on whether the alien is to be removed from the United States or awaiting return transportation to his/her country of citizenship after a final order of removal has been entered.

Expedited Removal: The removal without a hearing before an immigration judge of an alien arriving in the United States who is inadmissible because the individual does not possess valid entry documents or is inadmissible for fraud or misrepresentation of material fact; or the removal of an alien who has not been admitted or paroled in the United States and who has not affirmatively shown to the satisfaction of an immigration officer, that the alien had been physically present in the United States for the immediately preceding 2-year period (INA § 235(b)(1)(A)).

Inadmissible Alien: An alien who is ineligible to receive a visa and ineligible to be admitted to the United States, according to the pro-visions of INA § 212(a).

Reinstatement of Final Removal Orders: The removal of an alien on the reinstatement of a prior removal order, where the alien departed the United States under an order of removal and illegally re-entered the United States (INA § 241(a)(5)). The alien may be removed without a hearing before an immigration judge.

Removable Alien: An alien who is inadmissible or deportable (INA § 240(e)(2)).

Removal: The compulsory and confirmed movement of an inadmis-sible or deportable alien out of the United States based on an order of removal. An alien who is removed has administrative or criminal consequences placed on subsequent reentry.

Return: The confirmed movement of an inadmissible or deportable alien out of the United States not based on an order of removal.

released on their own recognizance. Beginning in FY12, USBP implemented the Consequence Delivery System (CDS) across all sec-tors. CDS guides USBP agents through a process designed to uniquely evaluate each subject and identify the ideal consequences to deliver to impede and deter further illegal activity. CDS consequences can include administrative, criminal, or programmatic actions.

Aliens unlawfully present in the United States and those lawfully present who are subject to removal may be identified and appre-hended by ICE within the interior of the United States. The agency’s two primary operating components are Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). ICE may identify aliens in violation of their sta-tus for removal while they are incarcerated, during worksite enforcement operations, or through other means. Aliens appre-hended by ICE are generally subject to the same consequences as aliens who are apprehended by USBP.

Benefit Denial

USCIS has authority to issue an NTA or otherwise refer an alien for removal proceedings upon determining that an alien is inadmissi-ble or has violated immigration law pursuant to INA Sections 212 and 237. USCIS will also issue an NTA when required by statute or regulation,4 e.g., termination of conditional permanent resident status, denial of asylum application, termination of refugee status, or positive credible fear determination.

4 As authorized by Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, PM 602-0050, November 7, 2011. http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20%28Approved%20as%20final%2011-7-11%29.pdf

Detention Process

Following arrest or transfer of custody from CBP, ICE ERO makes custody redeterminations, which may result in detention or release on bond, orders of supervision, or orders of recognizance. An alien may be detained during the pendency of removal pro-ceedings, and, if an alien is ordered removed, the alien may be detained for a certain period of time pending repatriation.

Removal Process

Removal proceedings include the administrative process that leads to the removal of an alien pursuant to Sections 237 or 212 of the INA.

Unless eligible for relief, the most common dispositions for aliens found within the United States, are returns, expedited removals, reinstatements of final orders and removal obtained through removal proceedings.

Return. Certain apprehended aliens who appear to be inadmissible or deportable may be offered the opportunity to voluntarily return to their home country in lieu of formal removal proceedings before an immigration judge.5 Generally, aliens waive their right to a hearing, remain in custody, and, if applicable, agree to depart the United States under supervision. Some aliens apprehended within the United States may agree to voluntarily depart and pay the expense of departing. Voluntary departure may be granted by an immigration

judge, during an immigration hearing or prior to an immigration hearing by certain DHS officials.

5 Examples include voluntary departure under INA § 240B, VWP returns under INA § 217(b), crew-members under INA § 252(b) and stowaways under INA § 217(b).

Expedited Removal. DHS officers and agents may order the expedited removal of certain aliens who are inadmissible because they do not possess valid entry documents or are inadmissible for fraud or misrepresentation of material fact; or because the alien, who has not been admitted or paroled in the United State, has not affirma-tively shown to the satisfaction of an immigration officer, that the alien had been physically present in the United States for the immediately preceding 2-year period. Aliens placed in expedited removal proceedings are generally not entitled to immigration proceedings before an immigration judge unless the alien is

2




3

seeking asylum or makes a claim to legal status in the United States. An expedited removal order issued by a DHS officer is equivalent to a removal order issued by an immigration judge.

Reinstatement of Final Removal Orders. Section 241(a)(5) of the INA permits DHS to reinstate final removal orders, without further hearing or review, for aliens who were removed or departed voluntarily under an order of removal and who illegally re-entered the United States.

Removal Proceedings. Aliens not immediately returned or processed for removal by a DHS officer, e.g. due to a fear of return or because the alien has applied for certain forms of adjustment of status, may be issued an NTA for an immigration hearing and may be transferred to ICE for a custody determination, which may result in detention or release on bond, orders of supervision, or orders of recognizance. Removal hearings before an immigration court may result in a vari-ety of outcomes including an order of removal; a grant of voluntary departure at the alien’s expense (considered a “return”); a grant of certain forms of relief or protection from removal, which could include adjustment to lawful permanent resident status; or termina-tion of proceedings. Decisions of immigration judges can be appealed to the Board of Immigration Appeals.

The penalties associated with removal include not only the removal itself but also possible fines, imprisonment for up to ten years for those who fail to appear at hearings or who fail to depart, and a bar to future legal entry.6 The imposition and extent of these penalties depend upon the individual circumstances of the case.

6 The bar is permanent for aggravated felons and up to 20 years for certain other aliens.

DATA7

7 CBP data (apprehensions, inadmissible aliens, removals, and returns) are current as of November 2013. ICE ERO apprehension data are current as of October 2013. ICE HSI data are current as of October 2013. ICE removal and return data are current as of January 2014. USCIS NTA data current as of May 2014.

Apprehension and inadmissibility data are collected in the Enforcement Integrated Database (EID) using Form I-213, Seized Asset and Case Tracking System (SEACATS), and EID Arrest Graphical User Interface for Law Enforcement (EAGLE). Data on individuals detained are collected through the ICE ENFORCE Alien Detention Module (EADM) and the ENFORCE Alien Removal

Table 1.

Apprehensions by Program and Country of Nationality: Fiscal Years 2011 to 2013

(Countries ranked by 2013 apprehensions)

Program and country of nationality

2013 2012 2011

Number Percent Number Percent Number Percent

PROGRAM

Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 662,483 100.0 671,327 100.0 678,606 100.0

CBP U.S. Border Patrol . . . . . . . . . . . . . . . . . . . . . . . 420,789 63.5 364,768 54.3 340,252 50.1

Southwest sectors (sub-total) . . . . . . . . . . . . . . . . 414,397 62.6 356,873 53.2 327,577 48.3

ICE Enforcement and Removal Operations . . . . . . . . . 229,698 34.7 290,622 43.3 322,093 47.5

ICE Homeland Security Investigations . . . . . . . . . . . . 11,996 1.8 15,937 2.4 16,261 2.4

COUNTRY OF NATIONALITY

Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 662,483 100.0 671,327 100.0 678,606 100.0

Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424,978 64.1 468,766 69.8 517,472 76.3

Guatemala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73,208 11.1 57,486 8.6 41,708 6.1

Honduras. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64,157 9.7 50,771 7.6 31,189 4.6

El Salvador . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,226 7.7 38,976 5.8 27,652 4.1

Ecuador . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,680 0.9 4,374 0.7 3,298 0.5

Dominican Republic . . . . . . . . . . . . . . . . . . . . . . . . . 3,893 0.6 4,506 0.7 4,433 0.7

Cuba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,809 0.4 4,121 0.6 4,801 0.7

Nicaragua . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,712 0.4 2,532 0.4 2,278 0.3

Jamaica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,147 0.3 2,655 0.4 2,862 0.4

Haiti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,992 0.3 1,492 0.2 1,351 0.2

All other countries, including unknown . . . . . . . . . . . . 29,681 4.5 35,648 5.3 41,562 6.1

Source: U.S. Department of Homeland Security, Enforcement Integrated Database (EID); Seized Asset and Case Tracking System (SEACATS); EID Arrest Graphical User Interface for Law Enforcement (EAGLE); CBP U.S. Border Patrol data for 2013 are current as of November 2013, 2012 are current as of November 2012, 2011 are current as of December 2011; ICE Enforcement and Removal Operations data for 2013 are current as of October 2013, 2012 are current as of October 2012, 2011 are current as of January 2012; Homeland Security Investigations data for 2013 are current as of October 2013, 2012 are current as of October 2012, 2011 are current as of June 2012.




Module (EARM). Data on USCIS NTAs are collected using the USCIS NTA Database. Data on individuals removed or returned are collected through both EARM and EID.

The data on enforcement actions (e.g., inadmissible aliens, apprehensions, NTAs, and removals) relate to events. For exam-ple, an alien may be apprehended more than once, and each apprehension would count as a separate record. Removals and returns are reported separately and counted in the years the events occurred. Data appearing for a given year may change in subsequent years due to updating of the data series.8

8 Arrests under INA § 287(g) are included in ICE ERO appre-hension data for 2011 to 2013.

TRENDS AND CHARACTERISTICS OF ENFORCEMENT ACTIONS

Apprehensions

DHS made 662,483 apprehensions in 2013 (see Table 1). The U.S. Border Patrol was responsible for 420,789 or 64 per-cent (see Figure 1) of all apprehensions. Ninety-eight percent of USBP apprehen-sions occurred along the Southwest border. ICE ERO made 229,698 adminis-trative arrests and ICE HSI made 11,996 administrative arrests.9

9 An administrative arrest refers to the arrest of an alien who is charged with an immigration violation. Administrative arrests are included in the DHS apprehension totals.

Nationality of All Apprehended Aliens. In 2013, Mexican nationals accounted for 64 per-cent of al l al iens apprehended by Immigration and Customs Enforcement or the U.S. Border Patrol, down from 70 per-cent in 2012. The next leading countries were Guatemala (11 percent), Honduras (9.7 percent), and El Salvador (7.7 per-cent). These four countries accounted for 93 percent of all apprehensions.

Nationality of Aliens Apprehended by Border Patrol. Non-Mexican aliens accounted for 36 per-cent of all USBP apprehensions in 2013, up from 27 percent in 2012. USBP apprehen-sions of non-Mexican aliens increased 182 percent from 2011 to 2013.

Table 2.

Apprehensions by U.S. Border Patrol Sector: Fiscal Years 2011 to 2013

(Sectors ranked by 2013 apprehensions)

4

U.S. Border Patrol Sector

2013 2012 2011


Total . . . . . . . . . . . . . . . . . 420,789 100.0 364,768 100.0 340,252 100.0Rio Grande Valley, TX . . . . . . . 154,453 36.7 97,762 26.8 59,243 17.4Tucson, AZ . . . . . . . . . . . . . . . 120,939 28.7 120,000 32.9 123,285 36.2Laredo, TX . . . . . . . . . . . . . . . 50,749 12.1 44,872 12.3 36,053 10.6

San Diego, CA . . . . . . . . . . . . 27,496 6.5 28,461 7.8 42,447 12.5Del Rio, TX . . . . . . . . . . . . . . . 23,510 5.6 21,720 6.0 16,144 4.7EL Centro, CA . . . . . . . . . . . . . 16,306 3.9 23,916 6.6 30,191 8.9EL Paso, TX . . . . . . . . . . . . . . 11,154 2.7 9,678 2.7 10,345 3.0Yuma, AZ . . . . . . . . . . . . . . . . 6,106 1.5 6,500 1.8 5,833 1.7Big Bend, TX* . . . . . . . . . . . . 3,684 0.9 3,964 1.1 4,036 1.2Miami, FL . . . . . . . . . . . . . . . . 1,738 0.4 2,509 0.7 4,401 1.3All other sectors . . . . . . . . . . . 4,654 1.1 5,386 1.5 8,274 2.4

* Formerly known as Marfa, TX.

Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP) U.S Border Patrol (USBP), Enforcement Integrated Database (EID), November 2013.

Table 3.

Aliens Determined Inadmissible by Mode of Travel, Country of Citizenship, and Field

Office: Fiscal Years 2011 to 2013

(Ranked by 2013 inadmissible aliens)

Characteristic

2013 2012 2011


MODE OF TRAVEL

Total . . . . . . . . . . . . . . . . . 204,108 100.0 193,606 100.0 212,234 100.0Land . . . . . . . . . . . . . . . . . . . 103,480 50.7 100,341 51.8 107,205 50.5Sea . . . . . . . . . . . . . . . . . . . . 51,568 25.3 52,509 27.1 66,227 31.2Air . . . . . . . . . . . . . . . . . . . . . 49,060 24.0 40,756 21.1 38,802 18.3

COUNTRY

Total . . . . . . . . . . . . . . . . . 204,108 100.0 193,606 100.0 212,234 100.0Mexico . . . . . . . . . . . . . . . . . 56,267 27.6 58,658 30.3 67,410 31.8Canada . . . . . . . . . . . . . . . . . 29,387 14.4 30,731 15.9 32,141 15.1Philippines . . . . . . . . . . . . . . . 23,389 11.5 22,486 11.6 25,197 11.9Cuba . . . . . . . . . . . . . . . . . . . 17,679 8.7 12,253 6.3 7,759 3.7China, People’s Republic . . . . . 13,552 6.6 12,888 6.7 16,931 8.0India . . . . . . . . . . . . . . . . . . . 11,815 5.8 6,907 3.6 5,983 2.8Ukraine . . . . . . . . . . . . . . . . . 2,882 1.4 2,928 1.5 4,359 2.1Russia . . . . . . . . . . . . . . . . . . 2,618 1.3 2,946 1.5 3,905 1.8Spain . . . . . . . . . . . . . . . . . . 2,423 1.2 1,717 0.9 988 0.5El Salvador . . . . . . . . . . . . . . 2,194 1.1 1,028 0.5 853 0.4All other countries, including unknown . . . . . . . . . . . . . . . 41,902 20.5 41,064 21.2 46,708 22.0

FIELD OFFICE

Total . . . . . . . . . . . . . . . . . 204,108 100.0 193,606 100.0 212,234 100.0Laredo, TX . . . . . . . . . . . . . . . 31,781 15.6 28,005 14.5 25,790 12.2San Diego, CA . . . . . . . . . . . . 25,632 12.6 26,889 13.9 33,719 15.9New Orleans, LA . . . . . . . . . . . 21,011 10.3 20,204 10.4 20,855 9.8San Francisco, CA . . . . . . . . . 14,939 7.3 9,832 5.1 6,954 3.3Buffalo, NY . . . . . . . . . . . . . . 13,425 6.6 14,050 7.3 15,712 7.4Houston, TX . . . . . . . . . . . . . . 10,909 5.3 12,706 6.6 19,528 9.2Tucson, AZ . . . . . . . . . . . . . . . 9,991 4.9 7,612 3.9 7,951 3.7Pre-Clearance*. . . . . . . . . . . . 9,695 4.7 8,559 4.4 8,586 4.0Seattle, WA . . . . . . . . . . . . . . 9,343 4.6 10,529 5.4 10,650 5.0Miami, FL . . . . . . . . . . . . . . . . 8,684 4.3 7,593 3.9 6,896 3.2All other , including unknown . . . . . . . . . . . . . . . 48,698 23.9 47,627 24.6 55,593 26.2

* Refers to abroad.

Source: U.S. Department of Homeland Security, Customs and Border Protection, Office of Field Operations. Enforcement Integrated Database (EID), October 2013.




5

Southwest Border Apprehensions. Apprehensions by the USBP along the Southwest border increased 16 percent from 356,873 in 2012 to 414,397 in 2013. Rio Grande Valley was the leading sector for appre-hensions (154,453) and displayed the highest increase from 2012 to 2013 (56,691 or 58 percent) (see Table 2). The next leading sectors in 2013 were Tucson (120,939) Laredo (50,749), San Diego (27,496), and Del Rio (23,510).

Inadmissible Aliens

CBP Office of Field Operations (OFO) determined 204,108 aliens arriving at a port of entry were inadmissible in 2013, up 5.4 percent from 193,606 in 2012 (See Table 3). Fifty-one percent of all inadmissi-ble aliens in 2013 were processed at land ports, followed by 25 percent at sea ports, and 24 percent at airports.

Nationality of Inadmissible Aliens. Mexican nationals accounted for 28 percent of inadmissible aliens in 2013, followed by Canada (14 percent) and the Philippines (12 percent). Other leading countries included Cuba, China, India, Ukraine, Russia, Spain and El Salvador. The greatest increases from 2012 to 2013 were for nationals of El Salvador (113 percent) and India (71 percent) (see Table 3).

Notices to Appear

DHS issued 224,185 NTAs in 2013, down from 235,687 in 2012 (see Table 4). ICE ERO issued 101,571 or 45 percent of all NTAs in 2013, down from 140,707 or 60 percent in 2012. NTAs issued by USCIS accounted for 25 percent of all NTAs in 2013, up from 18 percent in 2012, partly due to an increase in the number of

Table 4.

Notices to Appear Issued by Homeland Security Office: Fiscal Years 2011 to 2013

(Ranked by 2013 notices to appear)

Homeland Security office

2013 2012 2011


Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224,185 100.0 235,687 100.0 250,127 100.0ICE Enforcement and Removal Operations . . . . . . . . . 101,571 45.3 140,707 59.7 156,208 62.5United States Citizenship and Immigration Services . . 56,896 25.4 41,778 17.7 44,638 17.8CBP U.S. Border Patrol . . . . . . . . . . . . . . . . . . . . . . . 42,078 18.8 31,506 13.4 31,739 12.7CBP Office of Field Operations . . . . . . . . . . . . . . . . . . 23,640 10.5 21,696 9.2 17,542 7.0

Source: U.S. Department of Homeland Security, Customs and Border Protection, U.S. Border Patrol, November 2013; ICE Enforcement and Removal Operations, October 2013; CBP Office of Field Opera-tions, October 2013, United States Citizenship and Immigration Services, NTA Database, May 2014.

Table 5.

Initial Admissions to ICE Detention Facilities by Country of Nationality:

Fiscal Years 2011 to 2013

(Ranked by 2013 detention admissions)

Country of nationality

2013 2012 2011


Total . . . . . . . . . . . . . . . . . 440,557 100.0 477,523 100.0 429,247 100.0Mexico . . . . . . . . . . . . . . . . . 244,585 55.5 307,523 64.4 288,581 67.2Guatemala . . . . . . . . . . . . . . . 59,189 13.4 50,723 10.6 38,450 9.0Honduras. . . . . . . . . . . . . . . . 50,609 11.5 40,469 8.5 26,416 6.2El Salvador . . . . . . . . . . . . . . 40,261 9.1 31,286 6.6 23,792 5.5Ecuador . . . . . . . . . . . . . . . . . 4,716 1.1 3,856 0.8 2,957 0.7India . . . . . . . . . . . . . . . . . . . 4,057 0.9 1,522 0.3 3,438 0.8Dominican Republic . . . . . . . . 3,537 0.8 4,265 0.9 4,201 1.0Haiti . . . . . . . . . . . . . . . . . . . 2,382 0.5 1,609 0.3 1,775 0.4Nicaragua . . . . . . . . . . . . . . . 2,323 0.5 2,131 0.4 2,015 0.5Jamaica . . . . . . . . . . . . . . . . . 1,933 0.4 2,365 0.5 2,597 0.6All other countries, including unknown . . . . . . . . . . . . . . . 26,965 6.1 31,774 6.7 35,025 8.2

Note: Excludes Office of Refugee Resettlement and Mexican Interior Repatriation Program facilities.

Source: U.S. Department of Homeland Security, ENFORCE Alien Detention Module (EADM), October 2013.

Table 6.

Aliens Removed by Component: Fiscal Years 2011 to 2013

Component

2013 2012 2011


Total . . . . . . . . . . . . . . . . . 438,421 100.0 418,397 100.0 387,134 100.0ICE . . . . . . . . . . . . . . . . . . . . 330,651 75.4 345,628 82.6 314,453 81.2CBP U.S. Border Patrol . . . . . . 86,253 19.7 51,012 12.2 42,952 11.1CBP Office of Field Operations . . 21,517 4.9 21,757 5.2 29,729 7.7

Note: OIS and ICE totals may differ. See footnote 2 on page 1.

Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013.

Table 7.

Trends in Total Removals, Expedited Removals, and Reinstatements of Final Removal

Orders: Fiscal Years 2011 to 2013

Removals

2013 2012 2011


Total . . . . . . . . . . . . . . . . . 438,421 100.0 418,397 100.0 387,134 100.0Expedited Removals . . . . . . . . 193,032 44.0 163,308 39.0 122,236 31.6Reinstatements . . . . . . . . . . . 170,247 38.8 146,044 34.9 124,784 32.2All other removals . . . . . . . . . . 75,142 17.1 109,045 26.1 140,114 36.2





“Credible Fear” issued NTAs. USBP issued NTAs accounted for 19 percent of all NTAs in 2013, up from 14 percent in 2012. OFO issued 11 percent of NTAs in 2013 and 9 percent in 2012.

Detentions

ICE detained 440,557 aliens during 2013, a decrease of 8 percent from 2012 (See Table 5). Mexican nationals accounted for 56 per-cent of total detainees in 2013, down from 64 percent in 2012. The next leading countries in 2013 were Guatemala (13 percent), Honduras (12 percent) and El Salvador (9 percent). These four coun-tries accounted for 90 percent of all detainees in 2013.

Removals and Returns

Total Removals. The number of removals increased from 418,397 in 2012 to an all-time high of 438,421 in 2013 (see Tables 6, 7 and Figure 2). ICE accounted for 75 percent of all removals in 2013,

down from 83 percent in 2012. USBP accounted for 20 percent of all removals in 2013, up from 12 percent in 2012. OFO per-formed 4.9 percent of removals in 2013 and 5.2 percent in 2012 (see table 6). Mexican nationals accounted for 72 percent of all aliens removed in 2013. The next leading countries were Guatemala (11 percent), Honduras (8.3 percent) and El Salvador (4.7 percent). These four countries accounted for 96 percent of all removals in 2012 (see Table 8).

Table 8.

Aliens Removed by Criminal Status and Country of Nationality: Fiscal Years 2011 to 2013

(Ranked by 2013 aliens removed)


2013 2012 2011

Total Criminal*

Non-

Criminal Total Criminal*

Non-

Criminal Total Criminal*

Non-

Criminal

Total . . . . . . . . . . . . . . . . . . . . . . . 438,421 198,394 240,027 418,397 200,143 218,254 387,134 188,964 198,170Mexico . . . . . . . . . . . . . . . . . . . . . . . 314,904 146,298 168,606 303,745 151,444 152,301 288,078 145,133 142,945Guatemala . . . . . . . . . . . . . . . . . . . . . 46,866 15,365 31,501 38,900 13,494 25,406 30,343 11,718 18,625Honduras. . . . . . . . . . . . . . . . . . . . . . 36,526 16,609 19,917 31,740 13,815 17,925 22,027 10,825 11,202El Salvador . . . . . . . . . . . . . . . . . . . . 20,862 9,440 11,422 18,993 8,674 10,319 17,381 8,507 8,874Dominican Republic . . . . . . . . . . . . . . 2,278 1,805 473 2,868 2,182 686 2,893 2,142 751Ecuador . . . . . . . . . . . . . . . . . . . . . . . 1,491 580 911 1,763 706 1,057 1,716 704 1,012Colombia . . . . . . . . . . . . . . . . . . . . . . 1,421 956 465 1,591 1,055 536 1,899 1,048 851Brazil . . . . . . . . . . . . . . . . . . . . . . . . . 1,411 366 1,045 2,397 424 1,973 3,350 550 2,800Nicaragua . . . . . . . . . . . . . . . . . . . . . 1,337 691 646 1,400 731 669 1,502 696 806Jamaica . . . . . . . . . . . . . . . . . . . . . . . 1,101 993 108 1,319 1,150 169 1,474 1,225 249All other countries, including unknown . . 10,224 5,291 4,933 13,681 6,468 7,213 16,471 6,416 10,055

* Refers to persons removed who have a prior criminal conviction.

Note: Excludes criminals removed by Customs and Border Protection (CBP). CBP EID does not identify if aliens removed were criminals.


Expedited Removals. Expedited removals represented 44 percent of all removals in 2013, up from 39 percent in 2012 but down from an all-time high of 49 percent in 1999. Aliens from Mexico accounted for 75 percent of expedited removals in 2013. The next leading countries were Guatemala, Honduras, and El Salvador. Nationals from these four countries accounted for 98 percent of all expedited removals in 2013.

6




7

Reinstatements. Reinstatements of previous removal orders accounted for 39 percent of all removals in 2013. The number of removals based on a reinstatement of final orders increased every year between 2005 and 2013. In 2013, aliens from Mexico accounted for 75 percent of all reinstatements. Other leading countries included Guatemala, Honduras, and El Salvador. These four countries accounted for 99 percent of all reinstatements in 2013.

Criminal Activity. Approximately 198,000 aliens removed in 2013 had a prior criminal conviction.10 The most common categories of crime were immigration-related offenses, dangerous drugs, criminal traf-fic offenses, and assault. Immigration-related offenses increased 31 percent from 2012 to 2013 and 65 percent between 2011 and 2013. Dangerous drugs and criminal traffic offenses decreased 28 and 35 percent respectively from 2012 to 2013. These four leading categories accounted for 72 percent of all criminal alien removals in 2013 (see Table 9).

10 Excludes criminals removed by CBP; CBP EID data do not identify if aliens removed were criminals.

Table 9.

Criminal Aliens Removed by Crime Category: Fiscal Years 2011 to 2013

(Ranked by 2013 criminal aliens removed)

Crime Category

2013 2012 2011


Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198,394 100.0 200,143 100.0 188,964 100.0Immigration* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,194 31.3 47,616 23.8 37,606 19.9Dangerous Drugs** . . . . . . . . . . . . . . . . . . . . . . . . . 30,603 15.4 42,679 21.3 43,378 23.0Criminal Traffic Offenses† . . . . . . . . . . . . . . . . . . . . . 29,844 15.0 46,162 23.1 43,154 22.8Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,181 10.2 13,045 6.5 12,783 6.8Burglary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,505 2.8 3,569 1.8 3,808 2.0Weapon Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,296 2.7 2,513 1.3 2,730 1.4Larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,290 2.7 5,428 2.7 5,728 3.0Fraudulent Activities . . . . . . . . . . . . . . . . . . . . . . . . . 5,179 2.6 3,879 1.9 4,232 2.2Sexual Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,166 1.6 3,353 1.7 3,576 1.9Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,032 1.5 2,430 1.2 2,858 1.5All other categories, including unknown . . . . . . . . . . . 28,104 14.2 29,469 14.7 29,111 15.4

* Including entry and reentry, false claims to citizenship, and alien smuggling.** Including the manufacturing, distribution, sale, and possession of illegal drugs.† Including hit and run and driving under the influence.

Notes: Data refers to persons removed who have a prior criminal conviction. Excludes criminals removed by Customs and Border Protection (CBP). CBP EID does not identify if aliens removed were criminals.

Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014.

Returns. In 2013, 178,371 aliens were returned to their home coun-tries without an order of removal, a decline of 23 percent from 2012 and the lowest number since 1967 (see Table 10). 2013 was the ninth consecutive year in which returns declined. Fifty-nine percent of returns were performed by OFO in 2013, up from 48 percent in 2012. USBP accounted for 22 percent of all returns in 2013, down from 25 percent in 2012. From 2011 to 2013, returns by USBP decreased 66 percent. ICE accounted for the remaining 20 percent of returns in 2013, down from 27 percent in 2012. Mexican nationals accounted for 49 percent of all returns in 2013, down from 57 percent in 2012. The next leading countries of nationality for returns in 2013 were Canada (13 percent), the Philippines (12 percent) and China (6.6 percent) (see Table 11).

Table 10.

Aliens Returned by Component: Fiscal Years 2011 to 2013

Component

2013 2012 2011


Total . . . . . . . . . . . . . . . . . 178,371 100.0 230,386 100.0 322,124 100.0CBP Office of Field Operations . . 104,300 58.5 109,468 47.5 130,996 40.7CBP U.S. Border Patrol . . . . . . 38,779 21.7 58,197 25.3 113,886 35.4ICE . . . . . . . . . . . . . . . . . . . . 35,292 19.8 62,721 27.2 77,242 24.0

Note: OIS and ICE totals may differ. See footnote 2 on page 1.


FOR MORE INFORMATION

For more information about immigration and immigration sta-tistics, visit the Office of Immigration Statistics Website at www.dhs.gov/immigration-statistics.




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Table 11.

Aliens Returned by Country of Nationality: Fiscal Years 2011 to 2013

(Ranked by 2013 aliens returned)


2013 2012 2011


Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178,371 100.0 230,386 100.0 322,124 100.0Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88,042 49.4 131,983 57.3 205,158 63.7Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,963 13.4 27,039 11.7 28,274 8.8Philippines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,523 12.1 20,903 9.1 23,150 7.2China, People’s Republic . . . . . . . . . . . . . . . . . . . . . . 11,684 6.6 11,780 5.1 16,234 5.0Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,604 1.5 2,589 1.1 4,111 1.3India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,462 1.4 3,273 1.4 4,136 1.3Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,991 1.1 2,464 1.1 3,512 1.1Burma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,920 1.1 2,337 1.0 2,582 0.8Guatemala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,347 0.8 2,332 1.0 3,026 0.9Korea, South . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,259 0.7 1,191 0.5 1,619 0.5All other countries, including unknown . . . . . . . . . . . . 21,576 12.1 24,495 10.6 30,322 9.4

Note: Returns are the confirmed movement of an inadmissible or deportable alien out of the United States not based on an order of removal.


APPENDIX

ENFORCEMENT PROGRAM OFFICES

U.S. Customs and Border Protection (CBP)

Office of Field Operations CBP’s Office of Field Operations (OFO) is responsible for securing the U.S. border at ports of entry while facilitating lawful trade and travel. CBP officers determine the admissibility of aliens who are applying for admission to the United States at designated ports of entry.

U.S. Border PatrolThe primary mission of the U.S. Border Patrol (USBP) is to secure approximately 7,000 miles of international land border with Canada and Mexico and 2,600 miles of coastal border of the United States. Its major objectives are to deter, detect, and inter-dict the illegal entry of aliens, terrorists, terrorist weapons, and other contraband into the United States. USBP operations are divided into geographic regions referred to as sectors.

U.S. Immigration and Customs Enforcement (ICE)

Homeland Security InvestigationsThe U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) Directorate is a critical asset in the ICE mission, responsible for disrupting and dismantling transna-tional criminal threats facing the United States. HSI uses its legal

authorities to investigate immigration and customs violations such as: human rights violations; narcotics; weapons smuggling and the smuggling of other types of contraband; financial crimes; cyber crimes; human trafficking; child pornography; intellectual property violations; commercial fraud; export violations; and identity and benefit fraud. HSI special agents also conduct national security investigations aimed at protecting critical infra-structure vulnerable to sabotage, attack, or exploitation. In addition to domestic HSI criminal investigations, HSI oversees ICE’s international affairs operations and intelligence functions.

Enforcement and Removal OperationsOfficers and agents of ICE Enforcement and Removal Operations (ERO) serve as the primary enforcement arm within ICE for the identification, apprehension, and removal of certain aliens from the United States. ERO transports removable aliens, manages aliens in custody or subject in conditions of release, and removes indi-viduals ordered to be removed from the United States.

U.S. Citizenship and Immigration Services (USCIS)

U.S. Citizenship and Immigration Services (USCIS) oversees lawful immigration to the United States and processes applications for immi-gration benefits within the United States. USCIS provides accurate and useful information to its customers, granting immigration and citi-zenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of the immigration system.




STUDY ON ASYLUM SEEKERS IN EXPEDITED REMOVALAs Authorized by Section 605 of the International Religious Freedom Act of 1998

EVALUATION OF CREDIBLE FEAR REFERRAL IN EXPEDITEDREMOVAL AT PORTS OF ENTRY IN THE UNITED STATES

FEBRUARY 2005

Allen Keller, M.D.1,2, Andrew Rasmussen, Ph.D.1,2,Kim Reeves1,2, & Barry Rosenfeld, Ph.D.2,3

1 Bellevue/NYU Program for Survivors of Torture, New York, NY 2 New York University School of Medicine, New York, NY 3 Fordham University Department of Psychology, Bronx, NY

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TABLE OF CONTENTSOverview................................................................................................................................3

Background............................................................................................................................4

I. Study Methodology ........................................................................................................5Participants.................................................................................................................8

Basis for Secondary Inspection and Case Outcome ............................................9 Use of Interpreters and Bilingual Officers...........................................................10 Representativeness of Study Samples..................................................................11

II. Use and Adherence to the I-867 Format ........................................................................13 Relation to Credible Fear Referrals ...........................................................................17 Confirming Statements Made in Secondary Inspection Interviews...........................18

III. Expressing Fear and Referral.........................................................................................20 Officers Encouraging Aliens to Retract their Fear Claims ........................................23

IV. Understanding the Result of Secondary Inspection Interviews ....................................25

V. Officers’ Behavior During Secondary Inspection Interviews .......................................26

VI. Discussion of Findings ..................................................................................................28 Study Limitations.......................................................................................................31 Conclusion .................................................................................................................33

References Cited ....................................................................................................................35

Appendices.............................................................................................................................36 Appendix A: Demographic Characteristics of Samples ............................................36 Appendix B: Participant Cases Versus Non-participant Cases..................................37Appendix C: Data Analyses Excluding San Ysidro ..................................................40 Appendix D: Aliens Who Expressed a Fear and Were Not Referred ………………43

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OVERVIEW

Between May and July of 2004, the Bellevue/NYU School of Medicine Program for Survivors of Torture conducted a study of Credible Fear referral in the Expedited Removal process. Section 605 of the International Religious Freedom Act of 1998 authorized the United States Commission on International Religious Freedom (USCIRF) to appoint experts to study the treatment of asylum seekers subject to Expedited Removal. Pursuant to this authority, the Commission appointed Dr. Allen Keller as the “lead” expert with regard to monitoring ports of entry. Under Dr. Keller’s supervision, and employing a methodology developed by the authors of this report in consultation with the other experts appointed by the Commission, two dozen trained research assistants observed more than 400 cases over several months in seven ports of entry (airports and border crossings) in the continental United States. The study integrated data from observations of Secondary Inspection interviews, independent interviews with aliens conducted by our research staff, and a review of official records from these interviews (A-files). A draft of this report was reviewed by Customs and Border Protection (CBP) administrators and port directors, and their comments were used in making revisions.

Our findings suggest that when procedures are followed, appropriate referrals are more likely to be made. However, there was frequent failure on the part of CBP officers to provide required information to aliens during the Secondary Inspection interview and occasional failures to refer eligible aliens for Credible Fear interviews when they expressed a fear of returning to their home countries. In addition, researchers noted a number of inconsistencies between their observations and the official records prepared by the investigating officers (A-files). Finally, on a handful of occasions, researchers observed overt attempts by CBP officers to coerce aliens to retract their fear claim and withdraw their applications for admission.

The results of this study shed light on the first three of the four questions posed to the Experts by the Congress in Section 605 of IRFA. Those questions are, whether immigration officers exercising authority pursuant to the Expedited Removal provisions (Section 235(b)) of the Immigration and Nationality Act are, with respect to aliens who may be eligible for asylum, (1) improperly encouraging such aliens to withdraw their applications for admission; (2) incorrectly failing to refer such aliens for an interview by an asylum officer for a determination of whether they have a credible fear of persecution; (3) incorrectly removing such aliens to a country where they may be persecuted; or (4) are detaining such aliens improperly or under inappropriate conditions.

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BACKGROUND

In 1996, the United States Congress passed the Illegal Immigration Reform and Immigration Responsibility Act. One of the results of this law was the creation of the Expedited Removal process for aliens entering the country by fraudulent means, misrepresentation, or without proper travel documents. The Expedited Removal process, which was implemented in April of 1997, was intended to expeditiously identify and remove improperly documented aliens at ports of entry but, at the same time, ensure that bona fide asylum seekers would have access to an asylum hearing (GAO, 2000). All aliens entering the U.S. without proper travel documents or under fraud or misrepresentation are subject to immediate return (Expedited Removal) and are subsequently barred from entering the U.S. for a minimum of five years. However, if at the port of entry (i.e., during the Secondary Inspection interview) the alien states that he/she wishes to seek asylum or expresses fear of returning to the country he or she left, then the person is entitled to further consideration to determine the validity of his or her claim. This process begins with a referral for a Credible Fear interview with an asylum officer, who is charged with assessing the legitimacy of the alien’s claimed fear. This initial screening process at ports of entry has been the subject of debate among legal scholars and human rights activists.

One of the primary concerns raised by critics of the Expedited Removal process is the possibility that individuals with a genuine asylum claim may not be identified by the screening procedures and will be erroneously returned to their native country, possibly facing further danger or even death (U.N. High Commissioner for Refugees, 2003). Human rights organizations have provided anecdotal reports of individuals fearing persecution who were removed at the time of entry into the U.S. (ABA, 2004; Lawyers Committee for Human Rights, 2000), and several lawsuits have been brought alleging mistreatment at ports of entry (Wang, personal communication, July 2004). The General Accounting Office (GAO) reviewed 365 case files randomly selected from 47,791 fiscal year 1999 case files of aliens who attempted entry at Los Angeles, John F. Kennedy, and Miami airports, and San Ysidro border station and were charged under the Expedited Removal provisions (GAO, 2000). Although this study showed that inspectors at these ports generally complied with established procedures, the reliance on archival data (i.e., official records or A-files) presupposes that official records provide a reliable account of the actual procedures, behaviors and interactions that occurred.

The present study was designed to overcome some of the limitations of GAO’s methodology by integrating observational data and independent interviews in order to analyze the practices of Department of Homeland Security (DHS), Customs and Border Protection (CBP) officers at airport and land port border crossings across the U.S. This represents the first systematic study of the Expedited Removal process using direct observations of CBP officers and aliens during Secondary Inspection interviews and comparing these data with the official records generated from these interviews. The goals of this study were to assess the extent to which existing procedures enabled the identification of aliens with a credible fear of returning to their home country, to assess potential obstacles to accurate identification, and to assess the accuracy of data contained in the official records of these interviews. CBP administrators and port directors were consulted in the implementation of the study (e.g., optimal hours for collecting data) and, after reviewing a draft of the report, provided feedback.

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I. STUDY METHODOLOGY

Data were collected from seven sites across the country: Atlanta Hartsfield International Airport, Houston International Airport, John F. Kennedy International Airport (JFK), Los Angeles International Airport, Miami International Airport, Newark Liberty International Airport, and the San Ysidro Border Station. These sites were selected because of both the high volume of Secondary Inspections conducted and to obtain a representative cross-section of aliens entering the U.S. Across these sites, four sources of data were collected, some of which were integrated for subsequent analysis and others that were analyzed separately. Data collection involved a) observation of Secondary Inspection interviews conducted by CBP officers at several ports across the U.S. (JFK, Los Angeles, Miami, Newark, and San Ysidro), b) observation of videotaped Secondary Inspection interviews (Atlanta and Houston), c) interviews with aliens following a completed Secondary Inspection interview but prior to ultimate disposition (at JFK, Los Angeles, Miami, Newark, and San Ysidro), and d) review of official documents generated by CBP officials for all aliens who were interviewed or observed at the above-named locations (all sites). The decision to use live observation versus videotape was based on the availability of videotaped interviews at the sites as well as the amount and type of access provided to research staff.1 When videotaped observations were reviewed, we provided extra videotapes to the ports of entry in order to permit retention of those videotapes that had been coded in case further review was necessary.2 Prior to initiating data collection, the observational rating scale developed for this study was pilot-tested using videotaped Secondary Inspection interviews conducted at Houston International Airport. Because study investigators were prohibited from interfering with the tasks of CBP officers, no data were collected directly from the CBP officers (i.e., we did not interview officers about their opinion or decision-making).

In order to complete this large, multi-site research project, 26 research assistants were recruited and trained by the Principal Investigators (Drs. Keller and Rosenfeld), Project Coordinator (Dr. Rasmussen), and Site Supervisor (Ms. Reeves). Research assistants were recruited from local universities and graduate schools, and participated in an initial two-day orientation and training regarding immigration policies, study goals, past research findings, and the instruments and design involved in the current investigation. In addition, on-site supervision was provided on a regular basis by supervisory staff (Dr. Rasmussen and Ms. Reeves) in order to supplement this initial training and address general and site-specific research issues that arose during the course of the study. Efforts were made to recruit researchers that had experience with social and policy research, and were fluent in languages relevant to the particular ports of entry. In addition to English, the languages spoken by research staff included Spanish, French, Mandarin, Haitian Creole, Farsi, Serbo-Croatian, and German. When research interviews required fluency in a language that was not spoken by the available study personnel, telephonic interpreters were used. Study design logistics are presented in Table 1.1.3

1 We requested permission to videotape all interviews at each site. Unfortunately, approval was given by DHS after data collection had already been completed at most sites. 2 Standard procedure at both Atlanta and Houston was to retain videotapes for 90 days in case a need for review arose (although review reported to be extremely rare). All tapes were re-used after this 90 day period. 3 Because this study presents data that concern individuals who may be in danger if they are identified or have been returned to their country of origin, data are presented with as little identifying information as possible.

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Table 1.1: Study Design Study Site Data Study Period (# Weeks) Number of Cases

Atlanta Int’l Airport Video Obs. All videotaped interviews conducted from May 30 to June 7, 2004 were reviewed

43

Houston Int’l Airport Video Obs. Interview

A random subset of all videotaped interviews conducted from May 4, 2004 to June 20, 2004 were reviewed

27

JFK Int’l Airport (JFK) Direct Obs. Interview

June 16 to July 7, 2004 (3 wks) Weds-Mon, 2pm-10pm

13

Los Angeles Int’l Airport Direct Obs. Interview

July 7 to 25, 2004 (3 wks) Weds-Mon, 2pm-10pm

27

Miami Int’l Airport Direct Obs. Interview

May 19 to June 27, 2004 (6 wks) Thurs-Mon, 6am-10pm

110

Newark Int’l Airport Direct Obs. Interview

May 5 to June 13, 2004 (6 wks) Weds-Sun, 2pm-10pm

32

San Ysidro Border Station Direct Obs. Interview

May 26 to July 5, 2004 (6 wks) Weds-Sun 9am-10pm

191

Research assistants monitored the study sites for over 1500 hours, generating data on several hundred cases (described in detail below). The amount of time spent collecting data and the number of staff available varied across sites, ranging from a minimum of two researchers at Atlanta for a two-week period to a maximum of six researchers at Newark, Miami, and San Ysidro for six-week periods at each site. In all ports where live observation and interviews were conducted, staff were present during the hours and days in which the maximum volume of Secondary Inspections were conducted. As a result of space constraints and concerns about interference with port operations, USCIRF agreed to CBP requests to limit both the number of research assistants who could be present in a given site at any time, as well as the number of weeks that research staff could collect data.

National estimates of the number of aliens sent to Secondary Inspection per year approximate 10 million, and 90 percent of these individuals are ultimately allowed to enter the U.S. after being processed through an initial triage, usually at a counter in a large waiting room (Congressional Research Service Analysis of INS Workload Data, 2004). Our focus was confined to the 10 percent not allowed past this triage stage—i.e., those sent to Secondary Inspection interviews. Research assistants observed as many Secondary Inspection interviews that time and personnel restrictions allowed (provided they were informed that these interviews were occurring), and conducted independent interviews with aliens after the Secondary Inspection interviews were complete whenever possible. The length of observations ranged from 3 to 386 minutes, with an overall average of 54 minutes, although there was considerable variation across ports of entry. Interviews averaged 18 minutes at San Ysidro (range: 3 to 150) compared to 2 hours and 53 minutes at Houston (range: 79 to 380). Post-inspection interviews lasted, on average, one hour each. Roughly 10 percent of all observations were observed simultaneously by two researchers in order to assess the reliability of the ratings generated. Variables that could not be reliably rated were not used in subsequent data analysis (described below).

In sites where live observation was used to collect data (JFK, Los Angeles, Miami,Newark, and San Ysidro), aliens were asked to consent to allow research assistants to observe the Secondary Inspection interview. Of the aliens who were asked to consent to live

6




observations, only two (0.4 percent) refused to allow an observer to be present. A substantially larger proportion of aliens refused to consent to an individual interview after completion of the Secondary Inspection interview, as 64 of the 266 aliens (24 percent) approached refused. The most common reason cited for refusing to participate in an individual interview was feeling tired (n=8), although 21 people did not offer an explanation for refusing to participate in the research interview. Because researchers at Atlanta and Houston reviewed videotaped Secondary Inspection interviews that had already been completed, no individual interviews were conducted at Atlanta and only four were conducted at Houston. Once interviews or observations were complete, researchers requested official immigration files (A-Files) prepared on the basis of these same secondary interviews in order to compare the A-Files of the Secondary Inspection interview and the direct observations of our research team. Thus, a maximum of three data sources were available for analysis: observation (direct or videotaped) of the Secondary Inspection interview, independent interview with the alien and official records produced on the basis of the Secondary Inspection interviews (A-files).

Although the study methodology centered around obtaining a consecutive sample of Secondary Inspection interviews conducted at the research sites, we deliberately under-sampled Mexican cases processed at San Ysidro. Because of the high volume of Mexicans involved in Expedited Removal at San Ysidro, and the potential for these data to dwarf data collected at the other sites, we included data from only a subset of all Mexican cases and prioritized observations and interviews of non-Mexican aliens. This under-sampling was handled in several ways. First, after collecting observational data on 200 Mexican cases (far exceeding the volume of cases from other sites), we stopped conducting individual interviews with individuals from Mexico in order to focus our resources on interviews with non-Mexican aliens (although direct observation of Secondary Inspection interviews continued). Second, in order to reduce the disparity between Mexican aliens and those from other countries, we included only a random subset of these cases in the dataset analyzed (roughly one fourth of all Mexican cases observed; n=150). Finally, a number of analyses were conducted twice, once using the total sample and once after eliminating the San Ysidro sample. The analyses excluding San Ysidro are noted throughout the report and can be found in Appendix C. Thus, although the sample described below still contains a large number of Mexican aliens interviewed or observed at San Ysidro, it contains only a fraction of all Mexican cases for which data were collected.

Logistical difficulties also hindered data collection at some sites. For example, JFK has five terminals that process international flights and most regularly conduct Secondary Inspection interviews at counters rather than in individual rooms. Because these factors presented methodological challenges not present at other sites, we were unable to collect a sufficient amount of data to estimate an accurate picture of the frequency of behaviors and processes at this site. We observed cases at one terminal only (Terminal Four), and scheduled our research assistants to be present during the late afternoon and evening (high traffic periods). Because of the limited number of cases, JFK data are excluded from port-by-port statistical analyses, although they are included in analyses using the total sample.

In several data collection sites (Atlanta, Houston, and San Ysidro), Secondary Inspection interviews (live or videotaped) were observed by two researchers in order to establish inter-rater reliability. At San Ysidro and Houston, two researchers observed every 10th secondary

7




investigation interview while at Atlanta every interview was observed by two raters. In total, 93 paired ratings were available for analysis. Inter-rater reliability varied across the data collected with many variables being reliably assessed and others that were more difficult to establish reliable coding. When reliability was unacceptable (Kappa coefficient below .4 or intraclass correlation coefficient below .6), variables were excluded from subsequent data analysis.4 Of the data reported here, the average inter-rater reliability coefficient for dichotomous variables (Kappa) was .63 (range .42-1.00) and for variables with more than two categories (intra-class correlation coefficients) was .90 (range .65-1.00).

All data were initially entered into an Excel spreadsheet. Supervisory staff (Dr. Rasmussen and Ms. Reeves) monitored data entry, reviewing all data for incorrect entries and comparing 10 percent of all records against original sources to insure data accuracy. Excel spreadsheets were then converted to SPSS for subsequent data analyses.

Participants

In total, data were analyzed for 443 different cases across the seven data collection sites.These cases included 404 direct observations of Secondary Inspection interviews (341 live observations and 63 observations of videotaped interviews; because the same data was available from these two sources, these were collapsed into a single “observation” dataset for most analyses) and 194 individual interviews with aliens. Both interview and observation data were available for 155 cases; 39 cases had only an interview with our staff without direct observation of the CBP secondary investigation interview. A-files were available for 435 of these 443 cases (A-files were not provided for 8 cases). Figure 1 presents a schematic representation of the overlap between the three data sources.

Figure 1.1: Participant cases observed and interviewed

Observed only

Observed and Interviewed

(n = 249) (n = 155)

Interviewed only

(n = 39)

4 This process resulted in the exclusion of relatively few variables with the exception of observational ratings of several officer behaviors (described in Section IV), where a moderate number of potential variables were excluded because of inadequate reliability. Much of the difficulty in establishing reliability for these variables was attributable to the low frequency of the behaviors although some were also subjective in nature, increasing the potential variability in rater coding. Variables that were analyzed are found in Section IV of this report.

8




Because some important differences emerged across sites while other issues were consistent across all or most sites, data are described in some places for the entire sample and in other instances are reported for specific sites.

Demographics for the three samples are presented in Appendix A. Males comprised 58 percent of the sample. Participants came from 56 countries, although the vast majority originated from Central and South America and the Caribbean (roughly 80 percent). Over half the cases from each sample resulted in an Expedited Removal while another 24 percent were labeled Withdrawals (i.e., the alien voluntarily returned to his or her country of origin without requesting asylum or being banned from re-entry); roughly one sixth of all cases resulted in a referral for a Credible Fear interview. The initial intent of this study was to focus on both Expedited Removal proceedings as well as the processing of aliens bearing documentation from a Visa Waiver Program (VWP) country who were suspected of actually being from a non-VWP country.5However, because only a small number of VWP refusal cases (i.e., where an individual bearing documentation from a VWP country was refused entry because of suspected fraud or misrepresentation) were found (n=19), these data were excluded from analyses.6

Basis for Secondary Inspection and Case Outcome

Because many aliens were unaware of the basis for their Secondary Inspection interview, data on the reasons for Secondary Inspection across the different ports of entry were taken only from cases in which direct observation of Secondary Inspection interviews occurred. Of note, these data were missing in five percent of cases (n=20). The most common reasons for a Secondary Inspection interview included clearly false or missing documents, cases in which the travel visa appeared suspicious or may have misrepresented the alien’s intent, or when the alien had overstayed his or her visa during a previous visit to the U.S. Cases in which the CBP officer characterized the alien’s documents (passport and/or visa) as false (i.e., were clearly

Table 1.2: Basis for the Secondary Inspection Interviews by Port of Entry Port of Entry Objective Discretionary Prior Overstay Otherª Total

Atlanta 3 (7.1%) 17 (40.4%) 8 (19.0%) 14 (33.0%) 42Houston 6 (23.0%) 16(61.6%) 2 (7.7%) 2 (7.7%) 26

Los Angeles 10 (50.0%) 4 (20.0%) 2 (10.0%) 4 (20.0%) 20Miami 34 (36.2%) 15 (16.0%) 36 (38.3%) 9 (9.6%) 94

Newark 16 (53.4%) 4 (13.3%) 7 (23.3%) 3 (10.0%) 30San Ysidro 107 (62.2%) 52 (30.3%) 1 (.6%) 12 (7.0%) 172

Total 176 108 56 44 384 ª Other reasons included attempting to evade inspection, being arrested during prior visa extensions, and failing to register with immigration authorities on a prior visit.

5Under the standing interpretation of DHS regulations, aliens who use false passports from visa waiver countries will be returned unless they step forward and identify themselves as asylum-seekers. In contrast, aliens who use other false documents are subject to expedited removal, and must be asked if they have any fear of return before they can be expeditiously removed. (See 8 CFR 217.4; DHS Inspector Field Manual Section 15.7 (2003), In re Kanagasundram, BIA Interim Decision 3407 (1999)).6 Of the 19 VWP cases observed in the course of this study, three were referred for an “asylum only” interview (i.e., three requested asylum upon interview). Although this sample is small, the findings highlight the possibility that some individuals seeking asylum enter the U.S. bearing documentation from a VWP country.

9




fraudulent) or were absent (i.e., no passport) were subsequently classified as “objective” reasons for Secondary Inspection whereas cases in which a legal passport was presented but the CBP officer suspected that the visa did not accurately reflect the alien’s intent (e.g., an adult traveling on a student visa who is suspected of intending to remain indefinitely) or that the alien committed a material misrepresentation as “discretionary” reasons for a Secondary Inspection interview. In addition, we categorized Prior Overstay as a separate category since these decisions are often at the discretion of the CBP officer, although the bases for such decisions are typically more objective than cases of misrepresentation. Ports of entry differed in reasons offered for a Secondary Inspection interview, with Houston and Atlanta being more likely to refer aliens based on discretionary reasons than other ports of entry (see Table 1.2).

Case outcome also varied by port of entry. In most ports, Expedited Removal comprised the vast majority of case outcomes although both Atlanta and Houston had much higher rates of withdrawals. The proportion of Credible Fear referrals was also much higher in Miami than in the other ports of entry studied (see Table 1.3).

Table 1.3: Case Outcome by Port of Entry Port of Entry Expedited

Removal Withdrawal Credible Fear

ReferralTotal

Atlanta 13 (30.2%) 30 (69.8%) 0 43Houston 11 (40.7%) 14 (51.9%) 2 (7.4%) 27

Los Angeles 11 (40.7%) 7 (25.9%) 9 (33.3%) 27Miami 38 (34.5%) 34 (30.9%) 38 (34.5%) 110

Newark 12 (37.5%) 12 (37.5%) 8 (25.0%) 32San Ysidro 168 (88.0%) 10 (5.2%) 13 (6.8%) 191

Total 253 107 70 430

Use of Interpreters and Bilingual Officers

Less than one fifth of all cases (16.7 percent) were processed solely in English (i.e., whenthe alien spoke English). Cases were processed in 27 other languages, with the most common languages being Spanish (61.6 percent of all cases analyzed), followed by Portuguese (5.7 percent), Mandarin (4.1 percent), Haitian Creole (4.5 percent), and Arabic (1.1 percent). Information regarding the use of interpreters and bilingual officers are presented in Table 1.4 and 1.5. There was only one case processed during the study period in which a non-English speaking alien reported (during the interview with research staff) that no interpreter had been provided despite the inability of the interviewing officer to speak his language, however direct observation of this case did not occur7.

Table 1.4: Interpreters, Bilingual officers, and interviews in English Frequency Percent

Interpreter used 131 30.6 Interview done in English 79 18.5

Interview done by bilingual officer only 218 50.9 Total 428 100.0

7 There were two cases where aliens were provided interpreters but only after repeated requests by the alien. In a third case, it is unclear whether an interpreter was provided after repeated requests by the alien.

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Table 1.5: Number of cases and languages in which officers were bilingual Frequency Percent

Spanish 199 91.3 Haitian Creole 13 6.0

Mandarin 4 1.9 Russian 1 0.5 French 1 0.5

Types of interpreters used for those cases conducted in a language not shared between officer and alien by ports of entry are presented in Table 1.6. Clearly there were differences across sites, with Miami relying on telephonic interpretation, Atlanta on in-person staff, and Los Angeles, using all methods available.

Table 1.6: Type of Interpreters by Ports of Entry Atlanta Houston Los Angeles Miami Newark San Ysidro Total

Interviewing officerª 2 (6.7%) 1 (33.3%) 4 (19.0%) 2 (4.1%) 2 (22.2%) 1 (7.7%) 12 (9.6%) Another CBP officer 0 1 (33.3%) 3 (14.3%) 1 (2.0%) 1 (11.1%) 1 (7.7%) 7 (5.6%)

Telephonic interpreter 0 0 5 (23.8%) 46 (93.9%) 5 (55.6%) 11 (84.6%) 67 (53.6%)Airline employee 3 (10.0%) 0 5 (23.8%) 0 1 (11.1%) 0 9 (7.2%)

In-person interpreter 24 (80.0%) 0 3 (14.3%) 0 0 0 27 (21.6%)Unknown 1 (3.3%) 1 (33.3%) 1 (4.8%) 0 0 0 3 (2.4%)

Total cases 30 3 21 49 9 13 125 ªInterviewing officers both interviewed aliens themselves and interpreted for the primary officer

Representativeness of study samples

Most ports of entry provided basic demographic and case outcome information for cases that were processed during the study period but were not included in our study. Reasons for the failure to observe a Secondary Inspection interview or conduct a separate interview with the alien included the lack of research investigators on site at the time a case was processed, a volume of cases processed that exceeded the number of study investigators available, or a refusal on the part of the alien to participate in the study. Because the data provided varied somewhat across the study sites, comparisons were made on a port-by-port basis rather than using the aggregated dataset. Moreover, comparison data were not provided prior by Newark, and at Atlanta there was no comparison data because observations included all of the cases that were processed during the study period. Detailed data comparing cases observed during the course of the study versus those cases processed but not observed or interviewed are presented in Appendix B.

Across the sites that provided basic demographic data on Secondary Inspection interviews (Houston, JFK, Miami, San Ysidro), there were no significant differences in the gender or age of aliens who were observed or interviewed by our research staff compared to those processed but not included in our study. Case outcome differed between cases processed and those not observed at some ports of entry but not others. The proportion of Credible Fear referrals in our sample was greater at Miami and San Ysidro compared to cases not studied (i.e., we observed a disproportionately greater number of cases that resulted in a referral for Credible Fear interview) but there were no differences at the other sites. The proportion of Expedited Removals was greater among cases observed compared to those not observed at Houston but did

11




not appear to differ at other sites. There were no differences with regard to case outcome between cases included in this study and cases processed but not included at JFK and Los Angeles. Region of origin for aliens included in our study differed from those processed but not included at San Ysidro but not at the other study sites. At San Ysidro, the proportion of aliens from Latin America was lower in our sample than in the group not observed or interviewed, although this discrepancy was deliberate, due to our intentional under-sampling of Mexicans described above. Country of origin data were not available for JFK or Los Angeles. Given the modest, and non-systematic differences (with the exception of region of origin at San Ysidro), the data collected in the present study appears to provide a representative sample of the population of cases processed at these ports during the study period.

Relative to national statistics for 2000-2003 (summarized in Fleming and Scheuren, Statistical Report on Expedited Removal, Credible Fear, and Withdrawal, FY 2000-2003), our sample includes a higher proportion of women, of Expedited Removal cases at airports, and includes four of the top ten countries of origin for Credible Fear cases for 2000-2003. In addition, the patterns of case outcomes at particular ports of entry were similar.

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II. USE AND ADHERENCE TO THE I-867 FORMAT

The I-867A form provides information to arriving aliens concerning the Expedited Removal process, the consequences of providing false information, and the protections given by the U.S. for those individuals fleeing persecution. The I-867B form consists of questions designed to assess whether or not the alien has any fear of returning to his or her country—the “fear questions.” CBP Expedited Removal Training Materials (September, 2003) state that “Form I-867A&B must be used in every case in which an alien is determined to be subject to Expedited Removal. It is not an optional form” (p. 15; emphasis in original). Box 2.1 reproduces the text provided in the I-867A and B forms.

Box 2.1: Information that officers are obliged to read to aliens 2nd

paragraph You do not appear to be admissible or to have the required legal papers authorizing your admission to the United States. This may result in your being denied admission and immediately returned to your home country without a hearing. If a decision is made to refuse your admission into the United States, you may be immediately removed from this country, and if so, barred from reentry for a period of 5 years or longer.

3rd

paragraph This may be your only opportunity to present information to me and the Immigration and Naturalization Service [sic.] to make a decision. It is very important that you tell me the truth. If you lie or give misinformation, you may be subject to criminal or civil penalties, or barred from receiving immigration benefits or relief now or in the future.

I-867A

4th

paragraph U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country. If you fear or have a concern about being removed from the United States or about being sent home, you should tell me so during this interview because you may not have another chance. You will have the opportunity to speak privately and confidentially to another officer about your fear or concern. That officer will determine if you should remain in the United States and not be removed because of that fear.

Question 1 Why did you leave your home country or country of last residence? Question 2 Do you have any fear or concern about being returned to your home country or

being removed from the United States?

I-867B Fear

Questions Question 3 Would you be harmed if you are returned to your home country or country of last

residence?

Although reading the I-867A form is a required element of every Secondary Inspection interview in which Expedited Removal will be applied, we observed many cases in which the requisite information was not provided to the alien. In many other cases the alien was simply handed a photocopy containing the necessary information but was not read the information or offered any further explanation (see Table 2.1). The column labeled “Not read but presented in text” refers to cases in which the I-867A form was given to the alien without instructions or explanation of its content (i.e., placed in front of them). This was a common practice at Houston, which accounted for virtually all of the cases in which this material was presented in written form (see Table 2.1).

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Table 2.1: Information conveyed and questions asked from the I-867A and B forms Observation A-File

Obligatory Statements

Read or Paraphrased

Not read Not read but presented in

text

Question/response in record

Question/response not in record

I867A 2nd paragraph 278 (75.3%) 72 (19.5%)

19 (5.1%) -- --

I867A 3rd paragraph 206 (56.0%) 142 (38.6%)

20 (5.4%) -- --

I867A 4th paragraph 164 (44.1%) 188 (50.5%)

20 (4.5%) -- --

I867B: Why did you leave...?

325 (89.8%) 37 (10.2%)

-- 376 (95.2%) 22 (5.5%)

I867B: Do you have any fear...?

336 (94.1%) 21 (5.9%) -- 379 (95.2%) 19 (4.8%)

I867B: Would you be harmed..?

311 (87.1%) 46 (12.9%)

-- 379 (95.2%) 19 (4.8%)

I867B: At least one fear question asked

362 (95.0%) 19 (5.0%) -- 379 (94.8%) 21 (5.3%)

To examine the use and adherence to the I-867 format at each port of entry, these figures were obtained for each port of entry. Table 2.2 presents the same information as Table 2.1 port-by-port.8

Table 2.2: Information presented from the I-867A and B forms by Port of Entry Item Read or Paraphrased

Atlanta Houston LosAngeles

Miami9 Newark San Ysidro

I867A 2nd

paragraph 37 (94.9%) 22 (91.7%) 12 (75.0%) 86 (97.7%) 19 (67.9%) 120 (69.4%)

I867A 3rd

paragraph 35 (89.7%) 23 (95.8%) 12 (75.0%) 87 (97.8%) 14 (50.0%) 55 (32.2%)

I867A 4th

paragraph 35 (89.5%) 23 (95.8%) 11 (68.8%) 86 (96.6%) 13 (46.4%) 17 (9.7%)

Why did you leave..?

34 (91.4%) 20 (87.0%) 17 (85.0%) 71 (98.6%) 25 (83.3%) 157 (88.2%)

Do you have any fear..?

34 (89.5%) 22 (91.7%) 18 (90.0%) 69 (97.2%) 29 (96.7%) 163 (94.2%)

Would you be harmed..?

33 (89.2%) 20 (83.3%) 17 (85.0%) 70 (98.6%) 26 (86.7%) 144 (82.8%)

At least one fear question asked

34 (91.4%) 22 (91.6%) 18 (90%) 95 (96.9%) 29 (96.7%) 169 (94.4%)

Rates of reading information in the three paragraphs of the I-867A form varied across ports of entry,10 as did the rate associated with asking the third fear question (“Would you be harmed...?”).11 While rates for conveying this information were lower in Newark and Los Angeles than Miami, Houston and Atlanta, the lowest rates of compliance with I-867 requirements were observed at San Ysidro. At this site, aliens were read the 2nd paragraph from

8 The number and corresponding percentages vary somewhat because of missing data. 9 Language limitations of research assistants resulted in a number of missing cases for this variable at Miami. 10 Categorical association was measured using chi-square analysis; ²=36.12, p<.001; ²=121.70, p<.001; and ²=213.09, p<.001; for the 2nd, 3rd, and 4th paragraphs, respectively.

11 Categorical association was measured using chi-square analysis; ²=12.75, p<.05

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the I-867A form in roughly two thirds of all cases but only one in ten aliens were read the 4th

paragraph pertaining to U.S. providing protection to those fleeing persecution.12 San Ysidro personnel reported (after data collection had been completed) that staff periodically show an informational video that contains I-867A content (in both Spanish and English) to aliens awaiting Secondary Inspection in lieu of reading the information. San Ysidro personnel reported that officers are expected to read the I-867A to the alien when this video is not shown. Because this video was not observed by our research staff, we could not determine whether aliens watched this video when officers did not read the I-867A, and there is no information in A-files to indicate whether or not the video was shown. Moreover, it is not clear if officers conducting Secondary Inspection interviews are aware of whether or not this video has been shown to an alien when they begin their Secondary Inspection interviews. For subsequent analyses, we compared those cases in which the officer was observed to read the I-867A information versus those that were either not read or presented only with a written copy of the information (consistent with CBP policy and DHS regulations that require officers to read this information to the aliens out loud, IFM 17.15(b)(2003) and 8 CFR 235.3(b)(2)(2004)).

In order to judge whether officers’ adherence to the I-867A and B differed when a live observer was present versus when observations were videotaped, we compared data from videotaped observation sites (Atlanta and Houston) to those where live observation was used. Contrary to our expectation that the presence of study interviewers would result in greater compliance with established policies, two of the three I-867A paragraphs (the 2nd and 4th) were actually read more often in videotaped observations compared to direct observation.13 There was no significant difference in the rates of asking the I-867B fear questions. These findings were largely unchanged when data from San Ysidro were excluded (see Appendix C).

Officer utilization of the I-867B questions was substantially greater than provision of the I-867A information, as these questions were only omitted in between six and 13 percent of all cases (see Table 2.1). However, despite the observation of a number of cases in which the I-867B Fear questions were not asked, official documents prepared during these interviews (A-files) indicated that questions were asked and answered in most of the cases in which our research team did not observe any such questioning (see Tables 2.3-2.5). Notably, in some cases where the file did not indicate that the question had been asked or answered, our observers documented that the question had actually been asked. In 37 of 356 cases observed, the first question regarding why the individual left his or her home country or country of last residence was not read to the individual being interviewed (data were missing in 48 cases). Yet in 32 of those 37 cases (86.5 percent), the A-file incorrectly indicated that the question had been asked and answered. Of note, there was no indication in any of these files that this question was deliberately omitted because the information had been offered spontaneously during an earlier portion of the interview. Moreover, for the subset of these 37 cases in which a second researcher observed the same interview, both observers agreed that the question had not been asked.

12 All but 10 cases in the study sample at San Ysidro were subject to Expedited Removal proceedings. While there are ports of entry that regularly provide I-867 material to Withdrawal cases, there is some disagreement whether or not this practice is required. In any case, the 10 cases at San Ysidro (which were not provided I-867 information) are too few to substantially influence study results. 13 The association between observation type and proportion of cases in which I-867A information was read to the alien was analyzed using the chi-square test of association; ²=5.38, p < .05; ²=0.37, p = .54; and ²=6.61, p < .01 for the 2nd, 3rd, and 4th paragraphs, respectively.

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Table 2.3: "Why did you leave..." Question in file Total

Yes NoYes 304 (95.3%) 15 (4.7%) 319 Question

observed No 32 (86.5%) 5 (13.5%) 37Total 336 20 356

Table 2.4: "Do you have any fear..." Question in file Total



Table 2.5: "Would you be harmed..." Question in file Total



Because records of Secondary Inspection are relied upon in Credible Fear determinationsand subsequent asylum hearings, we looked closely at any information concerning the consistency of A-files and observations of these cases. Although not asked to specifically note inconsistency in case notes, research assistants noted seven cases (out of 69 referred for a Credible Fear interview) in which, upon review of A-files, there were marked differences between what was observed and the information contained in the official records. In five cases considerable detail about the aliens’ fears was not present in the A-file despite having been offered by the alien (and in one of these cases the officer specifically instructed the alien not to give details and to simply respond “yes” or “no” to questions). In three cases, the information recorded in A-files was qualitatively different from the responses observed in Secondary Inspection (e.g., one person responded to a fear question that “Falun Gong teaches me to help people” and the file states that this person simply answered “yes”). It should be emphasized that research assistants’ notes were not structured to investigate inconsistency between A-file and observations, and therefore these discrepancies are likely to represent a conservative estimate of the actual magnitude of this phenomena.

Relationship between I-867 and Credible Fear Referrals

In order to investigate the impact of reading I-867 materials, we explored the relationship between providing this information and Credible Fear referrals. There was no association between whether the interviewing officer read the 2nd paragraph (pertaining to the potential for removal and a 5-year bar on re-entry) and Credible Fear referral. However, Credible Fear referrals were significantly associated with reading the 3rd and 4th paragraphs of the I-867 (“This may be your only opportunity to present information …” and “U.S. law provides protection to certain persons who face persecution, harm or torture …” respectively). These data are detailed in Tables 2.6 and 2.7. For the 3rd paragraph, the likelihood of being referred for a Credible Fear interview was four times greater when the information was read to aliens compared to cases in

16




which this information was not provided.14 The odds of being referred for a Credible Fear interview increased seven times when the 4th paragraph was read to aliens relative to when it was not.15

Table 2.6: Association between 3rd paragraph (“This may be your only opportunity to present information…”) and referral for Credible Fear

Referred Not referred Read 3rd paragraph 51 (24.8%) 155 (75.2%)

Not read 3rd paragraph 13 (8.0%) 149 (92.0%)

Table 2.7: Association between reading the 4th paragraph (“US law provides protection…”) and referral for Credible Fear

Referred Not referred Read 4th paragraph 51 (31.1%) 113 (68.9%)

Not read 4th paragraph 13 (6.3%) 195 (93.8%)

With cases from San Ysidro excluded, associations between reading these paragraphs and referral showed a similar pattern of results, although the associations were no longer statistically significant because of the reduced sample size (see Appendix C).

In order to investigate whether the failure to ask the I-867 questions pertaining to fear had an impact on case outcome, we analyzed rates of referral for a Credible Fear interview among three sub-groups of individuals: those who were asked both fear-related questions (“Do you have any fear of returning …” and “Would you be harmed if you returned …”; n=327), those who were asked neither of these questions (n=20), and a third group who were asked only one of the two questions (n=35). As evident from Table 2.8, the likelihood of a Credible Fear referral increased with each additional fear question asked.16

Table 2.8: Fear inquired about directly by officer Referred Not Referred

Both "Fear" and "Harm" asked 59 (18.0%) 268 (82.0%) Either "Fear" or "Harm" asked 3 (8.6%) 32 (91.4%) Neither Fear Question asked 1 (5.3%) 18 (94.7%)

Of the 54 cases in which one or both of the fear questions were not asked, only four were referred for a Credible Fear interview. Eighteen of the 19 cases in which neither fear question was read either withdrew their application for admission to the U.S. or were ordered removed; only one was referred for a Credible Fear interview. Of the 35 cases in which one of the two questions were asked, 32 were ordered removed or withdrew their application for admission, and three were referred for a Credible Fear interview. With San Ysidro cases removed from the sample, these effects were roughly comparable (although again, the association was no longer statistically significant). In both the analyses with and without San Ysidro data, the likelihood of referral for a Credible Fear interview was roughly doubled for each fear question asked (i.e., the

14 This association was measured using the chi-square test of association; effect size was estimated with an odds ratio (OR); ²=17.67, p<.01, OR=3.77. 15 This association was measured using the chi-square test of association; effect size was estimated with an odds ratio (OR); ²=34.83, p < .001, OR=7.09 16 Spearman’s Rho ( )=.10, t=1.97, p <.05, OR=2.14

17




likelihood was 4 times greater for individuals who were asked both fear questions compared to those who were asked neither question).17

Confirming statements made in Secondary Inspection interviews

The statements taken during Secondary Inspection interviews and recorded in the I-867 form comprise an official record of the content of interviews between officers and aliens. Following the conclusion of the Secondary Inspection interview, aliens are asked to sign a statement attesting that the transcript of the statements made is correct. Confirming the accuracy of the statements is thus a required step for those referred for a Credible Fear interview, since these statements may be introduced as evidence during subsequent proceedings. According to the regulations:

Following questioning and recording of the alien’s statement regarding identity, alienage, and inadmissibility, the examining immigration officer shall record the alien’s response to the questions contained on the Form I-867B, and have the alien read (or have read to him or her) the statement, and the alien shall sign and initial each page of the statement and each correction. 8CFR 235.3(b)(2)(i)

Table 2.9: Observed being asked to confirm statements Frequency Valid Percent

Yes 319 84.4 No 59 15.6

Total 378 100.0

Table 2.10: Confirming statements and Referral for Credible Fear Referred Not referred

Asked to confirm 44 (13.8%) 275 (86.2%) Not asked to confirm 15 (25.4%) 44 (74.6%)

Overall, 84.4 percent of aliens observed were asked to confirm the truth of statementsrecorded by officers during Secondary Inspection. However, every statement was signed by aliens being interviewed – 15.6 percent were simply not informed of the reason for their signature. Being asked to confirm the truth of their statements was significantly less common for individuals who were referred for a Credible Fear interview hearing compared to cases in which the alien was being removed.18 More than a quarter of all aliens referred for a Credible Fear interview were not asked to confirm their statements, despite the potential use of these statements in subsequent asylum proceedings. With cases from San Ysidro removed, the rate of being asked to confirm statements was lower still (73.3 percent; the association between being asked to confirm statements and Credible Fear referral was not statistically significant when these data were excluded from the analysis; see Appendix C).

We also analyzed whether aliens actually read or had their statements read to them during the process of confirming the statement. In only 28.2 percent of cases, aliens were observed to

17 Ordinal association was measured by Spearman’s Rho; =.10, p=.16; OR=1.91. 18 2=5.11, p < .05, OR=.47. This finding is particularly worrisome given that Credible Fear referrals are precisely those instances in which the sworn statement may become relevant.

18




read their statements or had their statements read to them before signing the confirmation.19

When analyzing only those cases in which aliens were actually asked to confirm their statements (319 cases, or 84.4 percent of all observations), the rate of reading statements is only slightly higher (29.8 percent). Reading statements to aliens was a problem identified at all ports of entry studied. There was no association between being informed of the content of statements and referral for a Credible Fear interview. Of note, when asked during our interviews whether the content of statements was accurate, several of the aliens who reported having read the statements indicated that they had identified errors in their accuracy. Unfortunately, because videotaped interviews were not possible in most ports of entry, and A-file records were not available during the time when research staff reviewed videotaped interviews, it was not possible to compare written statements against the actual interview transcript.

Table 2.11: Were the statements read and by whom Frequency Valid Percent

Alien read statements 34 9.1 Interpreter read statements 36 9.7

Officer read statements 30 8.0Statements not read 268 71.8

Total 373 100.0

19 Despite short Secondary Inspection interviews at San Ysidro, the rate of confirming statements was higher. However, when cases from San Ysidro were excluded the rate of reading statements was also higher, (46.2%; see Appendix C).

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III. EXPRESSING FEAR AND REFERRAL

Referral for a Credible Fear interview is triggered when an alien expresses a fear of returning to his or her country of origin. In the process of this study we became aware of a significant discrepancy between DHS Regulations (8 CFR 235.3, 2004) and the CBP Inspectors’ Field Manual (CBP, 2003) as to whether or not there are types of fear that need not result in a Credible Fear referral (versus a presumption that any expression of fear must result in a Credible Fear referral). Specifically, Federal Regulations require that a Credible Fear referral occur regardless of the nature of the fear expressed. The CBP Field Manual, however, indicates that instances where the fear would clearly not qualify an individual for asylum need not necessarily be referred. Because this study could not resolve these complex policy issues, we sought to analyze the relationship between Credible Fear referrals and the nature of fears expressed by the aliens.

Among all cases for which data were available, we identified 69 cases where a referral for a Credible Fear interview occurred.20 Interestingly, in two of these cases no fear was expressed during the interview but the individual was referred for a Credible Fear interview nonetheless. Not surprisingly, the likelihood of a Credible Fear referral was significantly higher when an alien expressed some type of fear compared to cases in which he or she did not.21

However, in roughly one sixth of cases in which an alien expressed a fear of returning to his or her native country, no referral for a Credible Fear interview was made and the alien was either ordered removed or allowed to withdraw his or her application for entry. Of note, these data reflect the combined sample of interview and/or observational data (i.e., including the 39 individuals for whom a research interview was available but were not observed in the secondary investigation interview conducted by CBP). Table 3.1 presents the relationship between expressed fear and Credible Fear referrals. This association was essentially unchanged when San Ysidro cases were excluded (see Appendix C).

Table 3.1: Expressing fear to officer and Referral for Credible Fear Interview Referred Not referred

Fear expressed to officer 67 (84.8%) 12 (15.2%) No fear expressed to officer 2 (0.6%) 309 (99.4%)

Twelve individuals who expressed a fear of returning to their native country to officers were nonetheless returned without a referral for a Credible Fear interview (i.e., to determine if the fear expressed was sufficiently severe and valid as to warrant an asylum hearing in front of an immigration judge). These cases represented roughly three percent of all cases observed by our research staff but nearly one sixth of all cases in which a fear was expressed to officers. In seven of these 12 cases, the A-file did not indicate that any fear had been expressed. These 12 cases were no more or less likely to have been read I-867A information, or to be directly asked about their fear. In addition, there were 10 cases in which aliens expressed fear during our research interview when they had not mentioned any fear to the interviewing officer when asked.

20 This total did not include the 3 “Asylum Only” referrals of individuals arriving from Visa Waiver Program countries. 21 Categorical association was measured using chi-square analysis and effect size estimated with an odds ratio (OR); ²=306.47, p < .0001, OR=862.63

20




All of these individuals, when asked if they wanted to alert the CBP officer of their fear, declined (these cases are thus not included in among “Fear expressed to officer” in Table 3.1).22

In response to CBP concerns that aliens may be “prompted” to express fears to officers by the I-867B fear questions, we further examined A-files of the 79 cases in which aliens were observed to express fear directly to officers. For six cases, either A-files were missing Q & A records (n=4) or the entire A-files were missing at the time of review (n=2). For 73 cases we were able to determine whether or not fear was expressed before the I-867B questions had been asked, or was only stated in response to the fear questions. According to A-files, 50 of these individuals (63.3 percent) spontaneously expressed a fear of returning to their home country during the question and answer session or in response to the question “Why did you leave your home country or country of last residence.” Three quarters of these (n=38), however, had been told that US provides protection to persecuted individuals (i.e., they were read the 4th paragraph of the I-867A). In another 17 cases (21.5 percent) aliens’ fear claims appear in records only in response to asking directly about fear, and for six cases, no fear was recorded in the A-files (these individuals were all returned to their countries of origin). It should be noted that interpreting these findings as evidence that most aliens (at least two-thirds) who claim fear are not prompted by the fear questions must be done in light of our previous findings of considerable discrepancies between direct observation and the A-files (see Section II). Nevertheless, there was little evidence that aliens are prompted to claim fear by the I-867 information and questions.

Types of fear expressed by those individuals who expressed a fear to officers are presented in the Table 3.2, and abbreviated descriptions of the 12 individuals who expressed fear yet were not referred for a Credible Fear interview, as well as the ten individuals who expressed fear to our research assistants only, are provided in Appendix D. It should be noted that among the countries to which the 12 aliens who expressed fear were returned, five of them (of nine) are noted to have extrajudicial killings and human rights abuses in recent reports from the US Department of State and Amnesty International, and two of the countries have significant limitations on religious expression as cited in reports by the US Commission on International Religious Freedom.23

22 Seven of the ten individuals who expressed fear in the research interview but did not express their fear to interviewing CBP officer were asked to explain why they withheld this information. Two with a fear of economic hardship reported that their understanding of the officers’ questions were that they pertained only to “physical damage” and “life being in danger.” A third with an economic fear stated that he though the officers would not care and were going to deport him anyways. A woman who was afraid for her sick child reported that she thought “there was nothing [the officer] could do about” her situation. Another reported that he thought he actually had informed the officer of his fear but then declined the opportunity to relate his fear to the officers when given the opportunity. Two did not provide an explanation as to why they did not inform the officer of their fear, although both expressed considerable distrust of the interviewing officers. One indicated a belief that the officers were lying to him and the second reported that officers “screamed” at her while she was waiting for her interview and that they were “very inconsiderate” during the interview (the research assistant observing the interview corroborated this report, noting that an officer in the secondary waiting area was “sarcastic, demeaning” and “repeatedly shouted at her”). Three cases were missing information as to why they did not express their fear. 23 Because of concerns about the confidentiality of the participants, the countries are not identified—regions of origin for these participants are presented in Appendix D.

21




Table 3.2: Expressed Fear for those referred to a Credible Fear InterviewReferred Not referred

Political Persecution 29 (43.3%) 1 (8.3%) Coercive Family Planning 5 (7.5%) 0

Religious Persecution 9 (13.4%) 0Membership in a Particular Social Groupª 9 (13.4%) 1 (8.3%)

Nationality 2 (3.0%) 0 Race 2 (3.0%) 0

Not Specified 4 (6.0%) 3 (25.0%) Economic Hardship 2 (3.0%) 3 (25.0%)

Other 5 (7.5%) 4 (33.3%) Total 67 12

ª This includes domestic violence and female genital mutilation.

In many of the cases in which fear was expressed during the Secondary Inspection interview but no referral was made, the nature of the fear expressed may not have been sufficient justification for an asylum hearing.24 For example, three of the 12 cases in which aliens expressed fear directly to officers involved fears that were best characterized as economic hardship and one individual expressed a “fear” that concerned the health of a family member living in the U.S. However, two individuals articulated fears that may have formed the basis for a legitimate asylum claim, such as a fear of the government or concern about persecution by religious fundamentalists (one of these two individuals eventually declined referral for a Credible Fear interview after a lengthy discussion with interviewing officers).25 Other cases involved individuals whose fears were more ambiguous, such as cases where the nature of the fear was not described or where the individual expressed fear of harm because of debts owed or using a false passport to leave the country.

In order to gage the prevalence of referring cases which may have formed the basis of an asylum claim, we identified instances involving a clearly articulated fear of political persecution, coercive family planning, religious persecution, persecution based on nationality or racial discrimination, membership in a particular social group (including violence against women). Of the 58 cases that fell into these six categories, two aliens (3.4 percent) were not referred for a Credible Fear interview. In addition, there were seven cases in which the nature of the fear was not specified, and three of these individuals were also returned. When these two groups were combined (i.e., possibly “legitimate” fears based on asylum law and those cases in which the

24 Although our research methodology was not intended to ascertain the “validity” of fears expressed, we attempted to differentiate cases on the basis of the apparent legitimacy of the fears expressed in order to assess whether Credible Fear referral decisions were influenced by similar judgments made by CBP officers. 25 One man from South Asia characterized himself as a political activist and expressed fear of Islamic fundamentalists who had threatened him in the past. He acknowledged having applied for asylum during a previous visit but had been denied and subsequently removed. The research team observer noted that this individual clearly articulated a fear of returning to his country because of political persecution but also stated that he did not want to be detained. He indicated that he would prefer to return to his country rather than face detention in the U.S. The investigating officer informed the man that he could not be returned if he claimed fear, and was asked a second time whether he indeed feared returning. Upon this second inquiry the man denied having a fear of harm and was subsequently returned. Another individual, a male from Central America, expressed a fear of the government. When the CBP officer asked for more information this man was unable to give further explanation and subsequently retracted his claim. Of note, the A-file from this case indicated that the man’s concern pertained to his sons who were U.S. citizens and his wife who was ill. The file noted that his reply to the question about fear of harm was “it could be possible.”

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legitimacy of the fear could not be determined due to a lack of information) the rate of return was 7.7 percent (five of 65).26 A more general reading of U.S. Expedited Removal policies, in which anyone answering affirmatively to one of the “fear questions” should be referred for a Credible Fear interview, would result in a substantially higher rate of erroneous removals (roughly 15 percent, 12 of 79).

Officers encouraging aliens to retract their fear claims

While most individuals who expressed fear during Secondary Inspection were referred for a Credible Fear interview, there were four cases (all at Houston) in which CBP officers appeared to encourage aliens to withdraw their applications for admission after they had expressed a fear of returning to their home country and one case (at San Ysidro) in which officers encouraged an alien to retract his fear claim and removed him. In two of these cases aliens withdrew their application for entry into the US. One case in which an alien withdrew involved a woman from Central America who spontaneously expressed a fear of her ex-husband, crying and asking the officer to help her. The interviewing officer repeatedly told her that if she did not cooperate she would be “in trouble” and refused to answer her questions. Before asking the I-867B fear questions, the officer warned her that she would not see her family for a long time if she made a fear claim. The A-file indicated that the alien’s response to being asked about fear was, “Not a real fear. My ex-husband does not like me.” Another woman from Central America claimed a fear but did not specify the basis of that fear. The CBP officer handling the case informed her that she needed to state a reason for her fear and added “we can’t let everybody in.” The alien asked how long she would be in custody and what would happen to her son. The officer reportedly responded, “If you say you’re afraid you will go into detention for an unknown number of days until you have a hearing” and that she would not be able to have contact with her son (who lived in her home country).

Two other aliens were encouraged to retract their fear claims but did not and were ultimately referred for a credible fear interview. In one case a CBP officer told an African man that because he had tried to obtain an R-1 (Religious Worker) Visa, he must not have a fear of returning to his native country. This man had already expressed a fear of government officials because of his prior associations with Americans working in his country of origin. In addition, officers described in detail negative aspects of detention and repeatedly asked whether he had a fear of returning (despite his having already expressed such a fear), seemingly attempting to elicit a different (negative) response. The man maintained his request for admission and was eventually referred for a Credible Fear interview. Another potential withdrawal case involved a Central American man who feared being harmed by his in-laws, who had threatened him repeatedly. The officer told him, “What you are experiencing is a personal problem, not one the US offers people asylum for” and that “I know for sure you will be deported.” The officer then told the alien that if he claimed fear he would be in detention for three months. The alien maintained his claim and was referred.

26 Extrapolating from our sample, the “error rate” among expedited removal cases at these ports of entry (which are the busiest in the U.S.) , using this more conservative estimate and excluding cases that appear unlikely to justify a legitimate asylum claim, would likely fall between 1 and 13 percent (95% confidence interval: .01, .13).

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There was one case in which officers encouraged an alien to retract his fear and then removed him via Expedited Removal (i.e., without the option of withdrawing). This South Asian man (who is referenced above in footnote 25) was a political activist and feared of Islamic fundamentalists who had threatened him in the past. He had reportedly applied for asylum during a previous visit but his application had been denied and he was subsequently removed. He clearly articulated a fear that “enemy parties would kill” him, stated that he also feared being detained in the US, and asked the officer for advice. The officer said she could not help him make a decision and that he had already taken up too much of her time. The supervisor told the officer to ask the “fear” question again and the alien then said no. The officer told him that he would be processed for removal, not for political asylum because he already asked for political asylum and had been denied.

In addition to the cases described above, there were cases in which CBP officers told aliens about other negative consequences of pursuing asylum claims that could have been prohibitive. Two were told that because they entered illegally they might not have a chance to present their cases. Five were told they would be held in detention for three weeks or more and three of these were told that detention would last at least one month. Because it was sometimes difficult to differentiate between appropriate factual responses to alien questions and deliberate attempts to discourage fear claims, we did not consider these disclosures to reflect deliberate coercion.

In addition to the above incidents, our researchers were informed of two incidents at San Ysidro in which asylum seekers were reportedly turned away at Primary Inspection. Five aliens we interviewed reported having been turned away at the border the previous day. These cases involved two African men and one African woman who claimed to be fleeing political persecution and two Middle Eastern man expressing fears of religious persecution by “people in power.” These aliens reported having approached the CBP officer at Primary Inspection and requesting asylum but being told to “go away.” One of the Africans stated that the CBP officer “told us to go back from where we came from,” forcing them to return to Mexico. The next day, Primary Inspection officers stopped and handcuffed them briefly until the aliens refused to leave. One African reported that he cried and begged the officer to allow him to enter and all three were subsequently brought to the Secondary Inspection area. A Middle Eastern man described a similar incident, stating that a CBP officer at Primary Inspection refused him entry, telling him that he and his companion would need a Visa in order to proceed. The next day they returned and were brought to the Secondary Inspection area. In all of these cases, a referral for Credible Fear interview was subsequently made, albeit on the second attempt to enter the U.S.

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IV. UNDERSTANDING THE RESULT OF SECONDARY INSPECTION INTERVIEWS

In our interviews with aliens, research assistants also asked about the individual’s understanding of what would happen to them after completion of the Secondary Inspection interview. This question is particularly important because section 17.15(a) of the Inspector Field Manual requires that the inspector “must be absolutely certain…that the alien has understood the proceedings against him or her.” Nonetheless, nearly one third of the aliens we interviewed (n=56) reported having no knowledge of what was going to happen to them after the Secondary Inspection interview, despite having signed the statement (see Table 4.1). Understanding of the outcome of their interview did not vary by port of entry.

Table 4.1: Aliens’ reports of what will happen to them next Frequency Valid Percent

Expected to be returned to country of origin 88 48.4 Expected to be detained 12 6.6

Expected another interview 8 4.4 Did not know 56 30.8

Other 12 6.6 Expected nothing 6 3.3

Total 182 100.0

Aliens’ expectations regarding the outcome of their case was not associated with their case outcomes (see Table 4.2). Indeed, many aliens expected to be removed despite the fact that a large proportion of these individuals were actually going to be referred for a Credible Fear interview. More than half of the aliens referred for a Credible Fear interview expected to be returned to their country of origin while only one individual actually expected to have another interview. Conversely, less than half of the individuals being removed were aware that this would be the outcome of their interview (despite having signed a statement indicating that they had been informed). Even among the subset of individuals who withdrew their application for admission to the U.S., roughly a third did not realize that they were going to be returned to their country of origin. In short, our interviews with aliens revealed considerable confusion about what was going to happen to them and this confusion was present regardless of the actual outcome of the case.

Table 4.2: Aliens’ reports of what will happen to them next by case outcome Credible Fear referral Expedited Removal Withdrawal

Expected to be returned to country of origin 23 (53.5%) 41 (39.8%) 24 (66.7%) Expected to be detained 2 (4.7%) 8 (7.8%) 2 (5.6%)

Expected another interview 1 (2.3%) 6 (5.8%) 1 (2.8%) Did not know 11 (25.6%) 38 (36.9%) 7 (19.4%)

Other 5 (11.6%) 6 (5.8%) 1 (2.8%) Expected nothing 1 (2.3%) 4 (3.9%) 1 (2.8%)

Total 43 103 36

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V. OFFICERS’ BEHAVIOR DURING SECONDARY INSPECTION INTERVIEWS

Research assistants were also instructed to note a number of behaviors that might arise during Secondary Inspection interviews. These behaviors included several behaviors thought to be consistent with aggressive or intimidating interrogation procedures, as well as behaviors that reflected positive or helpful behaviors on the part of the officer.27 The frequency of these behaviors is presented in Tables 4.3 and 4.4.

Table 5.1: Aggressive or Intimidating Behaviors Observed during Secondary Inspection Behavior All cases Cases referred for

Credible Fear Raising voice 41 (10.4%) 13 (19.7%) Interrupting 40 (10.1%) 10 (15.2%)

Grabbing/threatening touches 1 (0.3%) 0Accusations 28 (7.1%) 4 (6.1%)

Verbal threats 20 (5.1%) 2 (3.0%) Sarcasm/Ridicule 37 (9.4%) 7 (10.6%) Being demanding 36 (9.1%) 5 (7.6%)

Standing over alien 9 (2.3%) 1 (1.5%) Leaving room without explanation 63 (15.9%) 9 (13.6%)

Table 5.2: Helpful Behaviors Observed during Secondary Inspection Interviews Behavior All cases Cases referred for

Credible Fear Offering comforting words 41 (10.4%) 8 (12.1%)

Friendly joking 61 (15.4%) 14 (21.2%) Small talk 44 (11.2%) 3 (4.6%)

Explaining actions 96 (24.3%) 16 (24.2%)

Most of the behaviors characterized as aggressive or intimidating behaviors were observed relatively infrequently, rarely exceeding ten percent of all cases. Helpful behaviors, on the other hand, were more frequent. In addition, our observers noted a number of occasions where interviewing officers engaged in helpful or comforting behaviors that were not systematically coded in the study. For example, research assistants were particularly impressed with a number of the CBP officers in Miami, who appeared to go to great lengths to make the aliens being interviewed more comfortable. On one occasion, an officer interviewing a pregnant Caribbean woman, appeared particularly sensitive to her physical condition and was both reassuring and helpful. At Newark, officers took special care to explain the Credible Fear process to two African men fleeing ethnic violence, and offered refreshments at several points during the interview. At Houston, an officer took time to discuss personal concerns about removal with a woman from South America. At San Ysidro, the Middle Eastern men (discussed above in Section III) were offered refreshments almost immediately after their arrival in the Secondary Inspection area.

However, a number of other aggressive or intimidating behaviors that were not systematically assessed were also noteworthy. For example, while not necessarily inappropriate

27 Some of these behaviors were not reliably coded, either because of ambiguous descriptions or because of exceptionally low frequency, and were excluded from subsequent analyses.

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for criminal aliens, multiple occasions of shackling aliens being processed for Expedited Removal was observed at JFK. This practice was not observed at any other port of entry during the study period. It should be noted that during the preparation of this report, the CBP New York Field Office informed our staff that CBP has since issued clear guidelines as to the use of physical restraint and that shackling is now extremely rare at JFK. In Houston, there were a number of incidents observed (on videotape) that appeared to reflect frankly inappropriate behaviors. One Central American man was told that he was a “woman,” and a “sissy,” and that he sat “like a girl.” In another incident, also at Houston, an officer referred to an alien who was not in the room as a “motherfucker” to a second officer, but in the presence of another alien who was involved in his own Secondary Inspection interview (which was occurring in English).

Of course, it is often difficult to accurately assess the appropriateness of officer behaviors outside of the context in which it occurs. Although not the focus of this study, we also coded aggressive or seemingly inappropriate behaviors on the part of the aliens being interviewed. Although inappropriate behavior on the part of aliens was occasionally noted, these behaviors typically comprised interruptions of the interviewing officers, raised voices, and a demanding tone. We did not observe any aggressive physical behaviors, disruptive behaviors, or threatening behaviors by aliens during the Secondary Inspection interview.28

28 It is possible that problematic alien behaviors occurred outside of the Secondary Inspection interview itself. However, our observers, who were present for extended periods of time, did not record any such behaviors.

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VI. DISCUSSION OF FINDINGS

Inspectors who work for the Bureau of Customs and Border Protection are the United States’ first line of defense at the border, charged with the challenge of ensuring that inadmissible aliens are not permitted to enter. At the same time, inspectors are required to ensure that individuals fleeing persecution, including torture, are offered the opportunity to seek protection, in accordance with U.S. laws and treaty obligations toward refugees and asylum seekers. In guidance in implementing Expedited Removal, the Department of Homeland Security (and its predecessor, the Immigration and Naturalization Service) emphasizes to its inspectors the importance of both of these missions:

“Because of the sensitivity of the program and the potential consequences of a summary (expedited) removal, you must take special care to ensure that the basic rights of all aliens are preserved, and that aliens who fear removal from the United States are given every opportunity to express any concerns at any point during the process. Since a removal order under this process is subject to very limited review, you must be absolutely certain that all required procedures have been adhered to and that the alien has understood the proceedings against him or her." (Inspector's Field Manual 17.15(a) (2003)."

Many inspectors who were observed during this study appeared to take this responsibility very seriously. In one particularly busy port of entry, Miami, in all but a very small number of cases observed, officers consistently demonstrated that most required procedures directly relating to the Credible Fear referral process were adhered to (one exception concerned reading sworn statements back to aliens, a problem area for all ports of entry). In other ports, however, inspectors’ adherence to these procedures was more variable, with some requirements being fulfilled the majority of the time and others frequently being neglected.

This study is the first systematic evaluation of the Expedited Removal process utilizing direct observation of Secondary Inspection interviews with arriving aliens. This study attempted to address a number of important issues in the Expedited Removal process, including the extent to which required information is being presented to aliens, whether official documents (e.g., A-files) accurately recount the Secondary Inspection interview, and whether a significant risk of erroneous removals of aliens who might otherwise qualify for an asylum hearing exist. Shortcomings observed in this study include the frequent failure on the part of CBP officers to provide required information to aliens during the Secondary Inspection interview, occasional failures to refer eligible aliens for Credible Fear interviews when they expressed a fear of returning to their home countries, inconsistencies between the official records prepared by the investigating officers and the observations made by our research team, and on a handful of occasions, overt attempts to coerce aliens to retract their fear claim and withdraw their applications for admission.

In a large proportion of cases observed, CBP officers did not provide information contained in the I-867A form to aliens who were being processed. For example, in roughly half of all cases observed, officers did not read the obligatory paragraph informing aliens that U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country. These statements are particularly important given that many aliens may not

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understand the purpose of the Secondary Inspection interview and may not realize that this interview is their primary, if not sole opportunity to express concerns or seek asylum. The importance of these paragraphs is evident in the association between providing the I-867A information and referral for a Credible Fear interview, as individuals who did not receive this information were significantly less likely to be referred for a Credible Fear interview.

Although far less common, the finding that CBP officers did not specifically inquire about fear of returning to their country in approximately five percent of the cases observed may be of even greater concern. Given the potential importance of these questions in eliciting aliens’ fears, it is unclear why some officers would fail to ask these questions. Particularly given the length of time typically used in Secondary Inspection interviews at the airports, the failure to ask these important and mandatory questions is simply inexplicable. Not surprisingly, the likelihood of a Credible Fear referral increased with each of the fear questions asked. If officers fail to provide an explanation and opportunity for aliens to express their concerns, this crucial step in the asylum process may not occur.

Even when the alien expressed a fear of return, referral for a Credible Fear interview was not guaranteed. One in six aliens who expressed a fear of return during the Secondary Inspection interview were placed in Expedited Removal or allowed to withdraw their application for admission. However, understanding the failure to refer aliens who expressed fear is complicated by the apparently conflicting positions expressed in different CBP guidelines. While some DHS regulations (8 CFR 235.3(b)(4)) indicate that any alien who expresses a fear must be referred for a credible fear interview, the Inspectors’ Field Manual instructs that the case should not be referred if “the alien asserts a fear or concern which is clearly unrelated to an intention to seek asylum or a fear of persecution.” Indeed, many of the cases that we observed in which an alien expressed fear but was not referred appeared to be “unrelated to an intention to seek asylum” (e.g., cases in which the alien expressed primarily economic concerns29). On the other hand, we observed some cases that appeared to be unequivocal cases of CBP error, returning precisely the sort of individuals that U.S. policy is designed to protect (e.g., a South Asian man who expressed fear of retaliation from religious fundamentalists because of his political affiliation). Although we would not deign to assess the credibility of the claims made by these individuals, it is clear that clarity is needed within CBP as to precisely when referral for a Credible Fear interview is warranted. When only the cases of fears voiced in Secondary Inspections that clearly fell into categories set out by asylum law were analyzed, we found an error rate of 3.4 percent, suggesting that a substantial number of individuals seeking asylum risk being returned, despite expressing a fear of return precisely as they are required (this rate increased to 7.2 percent when cases in which the nature of fear was not articulated were included). In essence, these findings suggest that some CBP officers make de facto assessments of the legitimacy of expressed fears, returning aliens that they perceive to be inappropriate and referring those that they perceive as warranting asylum (including two individuals who did not express any fear, but were from countries where legitimate fears are common). These practices suggest an important gap in the Expedited Removal process that should be addressed. However, even with absolute clarity regarding the procedures and policies (as apparently exists for the reading of the I-867 paragraphs and

29 However, we should note that economic hardship may occur within a broader context of persecution, as acknowledged by the USCIS Credible Fear Manual: “The statement by an applicant that ‘I left my country because I can’t work’ is insufficient to judge the merits if a case and should lead to further inquiry.” (Eligibility, Part I, p. 24)

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questions), our data suggest that errors will likely remain, albeit perhaps less frequently.

The lack of congruence between the observations of our research assistants and the official records prepared by the investigating officers (A-files) suggests that the asylum process itself may be compromised by the use of these documents as official transcripts. We found that when CBP officials failed to ask the relevant fear questions, the official record frequently indicated that these questions had been asked and answered, typically containing just the word “no” in response to fear questions that had not been asked. Likewise, on some occasions the A-files did not indicate that the relevant questions had been asked (i.e., were left blank) when our observers noted that they had been, or contained only a portion of the information that had been disclosed in response to a given question. These discrepancies, however, only reflect the most simplistic level of analysis, since the A-files might have provided incorrect information in many more cases but could not be detected because of our inability to simultaneously observe Secondary Inspection interviews and compare them with A-files. Nevertheless, these data demonstrate that A-files do not necessarily present an accurate record of Secondary Inspection interviews, despite the temptation to assume their accuracy. This issue is particularly important given the evidence observed in other studies in this report that the content of A-files is relied upon during the Credible Fear interview and subsequent Asylum hearings. Officials may present statements from the Secondary Inspection interview as evidence to impeach an aliens’ testimony, citing contradictions between their statements and the official records as evidence of a changing story (see Jastram and Hartsough, A-file and Record of Proceeding Analysis of Expedited Removal, this report), when the “evidence” is an erroneous official record.

The safeguard against inaccurate A-file records, asking aliens to attest to the accuracy of their statements, also appears inadequate as currently implemented. Roughly one in six cases in which statements were taken by CBP officers and recorded in A-files were not confirmed by aliens, despite the presence of signatures in the required place. When they were asked to confirm their statements, most aliens were neither asked to read the statements, nor had their statements read to them, but were simply told to sign forms. Aliens were often told to sign documents with little or no explanation of what they were signing or what the implications might be, and in most cases these documents were written in a language they were not able to read (English). Failure to confirm statements was more common in cases where the individual was referred for Credible Fear interviews, despite the fact that these statements have the potential to be used in subsequent Asylum Interviews and Hearings.

It is impossible to know how the presence of our observers influenced the behavior of CBP officers. It certainly seems likely that compliance with required policies could be greater and inappropriate behaviors would be fewer when observers were monitoring their interviews. Thus, the rates of problems observed in this study likely underestimate the actual rate of problem behaviors and failures to adhere to established policies. We attempted to investigate the effect of our presence by comparing cases in which live observation was used to those in which videotaped interviews were reviewed. In this analysis, when the data from San Ysidro were excluded (since the border crossing is quite different in many respects from the airports), although different rates of reading required material remained, we found no significant differences in the rates of failure to ask required questions, or the frequency of referrals for a Credible Fear interview. This may reflect the fact that 24-hour video surveillance of the

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interview rooms is not markedly different than live observation, indicating that both are vulnerable to the Hawthorne effect (where observers, by their mere presence, influence the behavior under investigation). Alternatively, officers may simply have behaved as they normally do, despite the presence of our research team. If so, the port-by-port variation observed in some variables may reflect differences in the training and supervision practices across ports. Ultimately, of course, we cannot know what the behavior of officers would be like without any form of observation. Nevertheless, given that it is virtually unimaginable that officers would have deliberately violated policies or required procedures more often while being monitored, it is likely that our observations represent some degree of underestimation of the problems observed in this study.

Perhaps most surprising is that, despite the presence of researchers observing Secondary Inspection interviews, our observers witnessed a number of incidents of seemingly serious problem behaviors. For example, our observers noted that on more than one occasion aliens were refused interpreters at Houston, even when they requested them. The report that aliens who claimed to have expressed a fear of persecution were initially turned away at the San Ysidro border crossing is an additional concern. In addition, aggressive or hostile interview techniques, sarcasm and ridicule of aliens, and verbal threats or accusations, while not common, were not infrequent in our sample. The fact that these behaviors occurred while observers were presentsuggests that such behavior may not even be perceived as problematic by some CBP officers.

Study Limitations

In addition to the possibility that officer behavior and adherence to policies improved simply because our research team was present, a number of methodological issues limit the conclusiveness of this study. Perhaps the most significant issue pertains to sample size. Although our initial intent was to have researchers present in each site for three to four months, USCIRF and CBP agreed to limitations in terms of both the volume of research staff that could be present as well as the length of time that study investigators could remain in each site. Thus, many of the study sites yielded an inadequate sample to permit reliable comparisons across sites or to allow for an accurate estimate of the prevalence of problems observed. Estimates of the frequency with which aliens are removed despite having expressed a seemingly legitimate fear are thus limited (particularly when only the airport study sites are considered). Nonetheless, this study represents the largest systematic analysis of the Expedited Removal process and the only study to apply a multi-method approach to these important issues.

A second limitation to our study concerns the small number of Visa Waiver Program (VWP) refusal cases that were observed by our researchers. Our initial intent was to systematically analyze this subset of VWP cases along with ER cases, particularly because of our expectation that individuals with a legitimate asylum claim may enter the U.S. with documentation from a VWP country. That we observed three (of 19) VWP cases in which aliens were referred for an “asylum only” hearing to determine the legitimacy of their claim offers some support for this belief. However, the small number of VWP cases observed was inadequate to reliably assess the frequency with which this occurs or whether different problems exist in the processing of ER and VWP cases. Further research focusing specifically in VWP cases is necessary to clarify differences and similarities between these types of cases.

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Another limitation in the present study was our reliance on live observations or one-timeviewings of videotaped observations for most aspects of data collection. Our original intent was to videotape all Secondary Inspection interviews at all ports of entry during the study periods (i.e., to install cameras in those ports that did not already videotape and to archive videotapes in ports that already routinely videotape).30 We also hoped to retain these videotapes after completion of the study, in order to permit re-analysis of the data whenever questions or important findings occurred. Such a method would have allowed, among other things, for a more detailed analysis of the accuracy of A-files, as well as help resolve observations that our researchers were unsure how to code. Although our inter-rater reliability data indicated that our researchers were quite consistent in their application of our coding system, reliability would have been further improved by the availability of videotapes (i.e., to review interactions that occurred too rapidly for the observer to perceive or when translation issues made comprehension difficult). Unfortunately, DHS administrators did not approve our request to videotape in advance of our required study timeline.31

At some sites, CBP officers themselves imposed additional study limitations. The most notable example was in Houston, where CBP officials were initially quite receptive.32 Once data collection began, however, Houston CBP officers were less cooperative. Early in the data collection process it became clear that many aliens had been interviewed in the Secondary Inspection area but that CBP staff had not notified our research assistants. This omission was brought to the attention of the Chief, and we were permitted to remain in Houston for an additional week of data collection. However, our research assistants were still not informed when aliens were present to be interviewed, resulting in only four post-inspection interviews during the 4-week study period in which dozens of aliens were processed. Moreover, our researchers described a number of overtly hostile behaviors, including one incident where a CBP supervisor attempted to physically remove a research assistant, grabbing her arm and escorting her from an area that had been previously designated as open to our personnel. Although it is not clear how or if this tension impacted our study findings, it is possible that this small sample of interviews with aliens arriving at Houston was not representative of all arrivals to this port.

Data collection at JFK was also limited, largely by the structure of the Secondary Inspection facilities. Because JFK utilizes a counter with several interview stations, and processes a large volume of cases of which Expedited Removal cases comprise only a small subset, we were unable to determine which among the many cases in Secondary Inspection were Expedited Removal interviews. These logistical difficulties preclude us from drawing any conclusions about the frequency of behaviors or problems at JFK.

30 Although Houston and Atlanta routinely videotape each Secondary Inspection interview, these videotapes are only archived for 2-3 months and then taped over. We requested these ports maintain copies of the videotapes our researchers reviewed, in case further review was desired, but we were not permitted to retain copies ourselves. 31 CBP officials eventually approved videotaping but not until two months after data collection had begun and our time constraints did not permit the application of this technology (i.e., we were unable to install and test equipment in the limited time left for data collection). 32 During the study design phase, Houston CBP staff allowed us to pilot our measurement instruments on videotaped Secondary Inspections and provided our research team with suggestions on how to best coordinate file review and live observations.

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A final limitation concerns the prohibition to measure the opinions of the CBP officers themselves. As those charged with carrying out the credible fear referral provisions of Expedited Removal policy, it may be that there are some officers who rely on their opinions of asylum and asylum seekers rather than the provisions as set forth in regulations. While our researchers reported that most of the officers they encountered were professional and did not seem to let preconceptions about the legitimacy of the asylum process or asylum seekers affect their work, further research addressing officer knowledge, attitudes and behaviors and the relationship between Expedited Removal practices would be helpful.

Conclusions

Our findings suggest that when procedures are followed, appropriate referrals are more likely to be made. These findings present a picture of a system that, with several notable exceptions, generally seems to function by the rules set out for it. This conclusion is applicable to each port of entry in our study to varying degrees. Research assistants often expressed admiration for officers who were able to balance the twin duties of interrogating aliens without proper documents and then providing protection to them when necessary. This conflicting dual nature of CBP officers’ role in the Expedited Removal process cannot be stressed enough, and it is with appreciation for the difficulty of this job, particularly in an era of heightened awareness and need for vigilance against international terrorism, that these findings are presented. While we cite shortcomings in the implementation of Expedited Removal, it is our hope that these observations will be perceived not as a criticism of CBP Inspectors, but as encouragement to better enforce those rules which are clear, and to more clearly articulate those which are not.This is particularly important with the creation of the Department of Homeland Security, in which INS inspection duties are being absorbed by many individuals who formerly worked as Customs or Agricultural inspectors.

This study identified a number of strengths and several disconcerting weaknesses in the Expedited Removal process concerning Credible Fear referral. Many ports employed practices which, if adopted by other ports, may result in much better compliance with CBP rules and reduce the chances that asylum seekers are returned to places where they may face persecution. For example, in Houston and Atlanta, the practice of videotaping all secondary inspections was associated with a higher tendency to comply with the requirement of explaining the Expedited Removal process to the alien, as articulated on the Form I-867A. In Atlanta and Los Angeles, the use of professional on-site interpreters was noteworthy, and may reduce the likelihood of communication problems during the interviews. Given that some asylum seekers come to the U.S. bearing documentation from Visa Waiver Program countries, the practices described by Newark and JFK personnel, in which all Visa Waiver Program cases are asked fear questions, appear appropriate and useful in identifying possible asylum seekers. Despite the high volume and short amount of time allotted for Secondary Inspection interviews, many San Ysidro officers were more diligent than some of those at airports. Finally, Miami International Airport deserves further study as a model. Without employing any of the above tools, Miami was much more compliant than any other port of entry in following the rules to ensure that asylum seekers are identified, and that aliens subject to Expedited Removal understand the nature of the proceedings.

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As is clear in this report, DHS procedures designed to identify and refer asylum seekers subject to Expedited Removal are not always followed by immigration inspectors. Since these procedures are not always followed, it is impossible not to conclude that some proportion of individuals with a genuine asylum claim are turned away. Given the vulnerable nature of many aliens who seek asylum in the U.S., adherence to established protocol should be a minimum requirement.

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REFERENCES CITED

American Bar Association Commission on Immigration and the Leadership Conference on Civil Rights Education Fund (ABA), "American Justice Through Immigrants' Eyes", 2004. Link: http://www.abanet.org/publicserv/immigration/Due_Process.html

Department of Homeland Security, Bureau of Customs and Border Protection (CBP), Inspector's Field Manual (M-450), Chapter 17.15 (September 2003).

Lawyers Committee for Human Rights, "Is this America - The Denial of Due Process to Asylum Seekers in the United States" (October 2000).

Letter to Mark Hetfield, USCIRF, from Phillip Huang, Staff Attorney, Lawyers Committee for Civil Rights of the San Francisco Bay Area (July 8, 2004).

Regulations: 8 CFR 235.3 (2004).

United Nations High Commissioner for Refugees (UNHCR), “Study of the U.S. Expedited Removal Process: Report to the U.S. Department of Homeland Security” (24 October 2003) (Unreleased).

United States General Accounting Office (GAO), Report to Congressional Committees:ILLEGAL ALIENS Opportunities Exist to Improve the Expedited Removal Process (GAO/GGD-00-176) (September 1, 2000).

35




APPENDICES

Appendix A: Demographic characteristics of samples

Observed Interviewed File# Valid % # Valid % # Valid %

237 58.7 110 56.7 253 58.2 Gender

MaleFemale 167 41.3 84 43.3 182 41.8

13 3.2 9 4.6 15 3.4 332 82.2 160 82.5 358 82.3 49 12.1 20 10.3 52 12.0 9 2.2 5 2.6 9 2.1

Region of Origin Africa

Americas Asia

EuropePacific Islands 1 .2 1 .2

49 12.4 256 64.6 38 9.6 9 2.3

Race:BlackWhite Asian

Native Am. Mestizo 44 11.1

117 29.0 Latino ethnicity

Not Latino Latino 286 71.0

93 48.2 120 61.9 Marital status

Single Married 100 51.8 74 38.1

6 3.1 162 83.9

4 2.1 7 3.6

10 5.2 4 2.1

Religion Buddhist Christian

Hindu Jewish

Muslim None Other 6 3.1

81 42.0 50 25.9 29 15.0 23 11.9 7 3.6

Education No High School

High School Some College

College Degree Graduate/Professional

DegreeNo Education 3 1.6

Case outcomeCredible Fear referral 67 16.6 50 25.8 69 15.9

Expedited Removal 241 59.7 102 52.6 261 60.0 Withdrawal 96 23.8 42 21.6 105 24.1

Mean age (SD) 33.3 (10.7) 34.0 (11.1)

36




Appendix B: Participant cases versus non-participant cases

Houston

Not observed/interviewed Observed/Interviewed Case outcome Frequency Valid Percent Frequency Valid Percent

Credible Fear referral 0 0.0 2 7.4 Expedited Removal 3 10.3 11 40.7

Withdrawal 26 89.7 14 51.9 Total 29 100.0 27 100.0

The case outcomes between the two samples were significantly different33. Specifically, in our sample there were more Expedited Removal cases and fewer Withdrawals. In addition, there were two Credible Fear referral cases in our sample.

Not observed/interviewed Observed/Interviewed Gender Frequency Valid Percent Frequency Valid Percent

Male 19 65.5 19 70.4 Female 10 34.5 8 29.6

Total 29 100.0 27 100.0

Gender between the two samples did not differ.

Mean Std. Deviation Mean Std. Deviation Age 32.86 11.04 32.70 11.00

These samples did not differ by age.

Not observed/interviewed Observed/Interviewed Global Region Frequency Valid Percent Frequency Valid Percent

Africa 1 3.4 1 3.7 Americas 22 75.9 22 81.5

Asia 6 20.7 4 14.8 Total 29 100.0 27 100.0

Global region of origin did not differ between the two samples.

John F. Kennedy




The case outcomes between the two samples were not significantly different.

33 ²=10.14, p < .01

37





Male 100 63.3 9 69.2 Female 58 36.7 4 30.8

Total 160 100.0 14 100.0


Age and global region information was not available from JFK records.

Los Angeles




Case outcome between the two samples did not differ. Gender, age, and global region information was not available from Los Angeles records.

Miami




The proportion of Credible Fear cases among those we interviewed was higher than among those we did not interview34.


Male 262 60.0 55 50.0 Female 175 40.0 55 50.0

Total 437 100.0 110 100.0




34 ²=7.55, p < .05

38





Africa 4 0.9 0 0Americas 386 88.3 96 87.3

Asia 36 8.2 11 10.0 Europe 11 2.5 3 2.7

Total 437 100.0 110 100.0

The two samples did not differ with regards to global region of origin.

San Ysidro




The two samples differed by case outcome35, with higher proportions of Credible Fear referrals and Withdrawals among the group we observed or interviewed.


Male 295 62.5 117 61.3 Female 177 37.5 74 38.7

Missing 69 0 0.0 Total 541 100.0 197 100.0

The two samples did not differ on gender, although missing data on the group that was not observed or interviewed may have biased this finding.




Africa 1 0.2 4 2.0 Americas 530 98.0 179 93.4

Asia 7 1.3 8 4.1 Europe 2 0.4 0 0.5

Pacific Islands 1 0.2 0 0.0 Total 541 100.0 191 100.0

The two samples differed by global region of origin36, with a higher proportion of cases from Latin America among those we did not observe or interview.

35 ²= 37.95, p < .001 36 ²= 14.68, p < .01

39




Appendix C: Data analyses excluding San Ysidro (Tables correspond to tables in the report)

Table 2.1a: Information conveyed and questions asked from the I-867A and B forms Observation

Obligatory Statements Read or Paraphrased Not Read I867A 2nd paragraph 158 (80.6%) 38 (19.4%) I867A 3rd paragraph 151 (76.6%) 46 (23.4%) I867A 4th paragraph 147 (74.6%) 50 (25.4%)

Why did you leave...? 168 (91.3%) 16 (8.7%) Do you have any fear...? 173 (94.0%) 11 (6.0%) Would you be harmed..? 167 (91.3%) 16 (8.7%)

At least one fear question asked 196 (95.1%) 10 (4.9%)

Table 2.2a “Why did you leave…”Question in file Total

yes noyes 158 (97.5%) 4 (2.5%) 162 Question

observed no 13 (81.3%) 3 (18.8%) 16Total 171 7 178

Table 2.3a “Do you have any fear…”Question in file Total



Table 2.4a “Would you be harmed…” Question in file Total



Table 2.6a: Association between 3rd paragraph (“This may be your only opportunity to present information…”) and referral for Credible Fear37

Referred Not referred Read 3rd paragraph 44 (29.1%) 107 (70.9%) Not read 3rd paragraph 8 (17.4%) 38 (82.6%)

Table 2.7a: Association between reading the 4th paragraph (“US law provides protection…”) and referral for Credible Fear38

Referred Not referred Read 4th paragraph 43 (29.3%) 104 (70.7%) Not read 4th paragraph 9 (18.0%) 41 (82.0%)

37 ²= 2.51, p = .11, OR = 1.95 38 ²= 2.43, p = .12, OR = 1.88

40




Table 2.8a: Fear inquired about directly by officer39

Referred Not Referred "Fear" and "Harm" asked 49 (26.2%) 138 (73.8%) "Fear" or "Harm" asked 1 (12.5%) 7 (87.5%) Fear not asked 1 (10.0%) 9 (90.0%)

Table 2.9a: Observed being asked to confirm statements Frequency Valid Percent

No 52 26.7 Yes 143 73.3

Total 195 100.0

Table 2.10a: Confirming statements and Referral for Credible Fear Referred Not referred

Asked to confirm 34 (72.3%) 109 (73.6%) Not asked to confirm 13 (27.7%) 39 (26.4%)

Table 2.11a: Were the statements read and by whom: Observational sample.Frequency Valid Percent

Alien read statements 32 16.4Interpreter read statements 36 18.5 Officer read statements 22 11.3Statements not read 105 54.1

Total 195 100.0

Table 3.1a: Expressing fear and referral for Credible Fear Interview40

Referred Not referred Fear expressed 54 (93.1%) 4 (6.9%) No fear expressed 2 (1.3%) 153 (98.7%)

Table 4.1a: Aliens’ reports of what will happen to them next Frequency Valid Percent

Will be removed 63 56.8 Will be detained 4 3.6

Will have another interview 4 3.6 Nothing will happen 3 2.7

Do not know 29 26.1 Other 8 7.2 Total 111 100.0

39 rs = .10, p = .16 40 ²= 183.60, p < .0001, OR = 1032.75

41




Table 5.1a: Aggressive or Intimidating Behaviors Observed during Secondary Inspection Interviews

Behavior All cases Cases referred for Credible Fear

Raising voice 35 (16.4%) 13 (24.1%) Interrupting 35 (16.4%) 10 (18.5%)

Grabbing/threatening touches 1 (0.5%) 0Accusations 25 (11.7%) 3 (5.6%)

Verbal threats 18 (8.5%) 1 (1.9%) Sarcasm/Ridicule 30 (14.1) 7 (13.0%) Being demanding 33 (15.4%) 5 (9.3%)

Standing over alien 9 (4.2%) 1 (1.9%) Leaving room without explanation 58 (27.1%) 9 (16.7%)

Table 5.2a: Helpful Behaviors Observed during Secondary Inspection Interviews Behavior All cases Cases referred for

Credible Fear Offering comforting words 33 (15.4%) 7 (13.0%)

Friendly joking 48 (22.4%) 11 (20.4%) Small talk 33 (15.5%) 2 (3.8%)

Explaining actions 75 (35.0%) 16 (29.6%)

42




Appendix D: Aliens who expressed a fear and were not referred

Port of Entry

Gender Region of origin

Fear expressed to officer

Fear recorded in file Case Outcome

Newark female South America

Economic Hardship no Expedited Removal

Miami male South America


Houston female Central America

Not specific no Withdrawal

Houston female Central America

Fears ex-husband (Social Group)

Fears ex-husband Withdrawal

SanYsidro

male Central America

Not Specific no Expedited Removal

SanYsidro


Police will harass him at border (Other)

“Yes, on the border because of police”

Expedited Removal

SanYsidro

male East Asia Economic Hardship no Expedited Removal

SanYsidro


Scared of government (Not Specific)

“It could be possible” Expedited Removal

SanYsidro


Economic Hardship “Yes, there’s no jobs back home”

Expedited Removal

SanYsidro

female CentralAmerica

Ill child in US (Other) “My daughter is sick” Expedited Removal

SanYsidro

male South Asia Threats by fundamentalist political party

(Political Persecution)

no Expedited Removal

SanYsidro


Does not know Mexico (Other)


Port of Entry

Gender Region of origin

Fear expressed to researcher only

Fear recorded in file Case Outcome

Newark female West Africa Passport problems (Other)

no Withdrawal



Miami female South America

Not specific no Expedited Removal



Miami female South America

Ill child in US (Other) no Expedited Removal

JFK male South America

Police would learn about US immigration

case (Other)


JFK male Caribbean Economic Hardship no Expedited Removal

SanYsidro

female CentralAmerica

Economic Hardship no Withdrawal

SanYsidro

female South America


SanYsidro



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